| People v Morris |
| 2012 NY Slip Op 03024 [94 AD3d 1450] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Allen Morris,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedOctober 4, 2010. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]).Defendant contends that County Court abused its discretion in denying his motion to withdrawthe guilty plea on the ground that he was misinformed with respect to the negotiated sentence tobe imposed. Although defendant's contention survives his waiver of the right to appeal (see People v Sparcino, 78 AD3d1508, 1509 [2010], lv denied 16 NY3d 746 [2011]), we conclude that it is withoutmerit. " 'Permission to withdraw a guilty plea rests solely within the court's discretion. . . , and refusal to permit withdrawal does not constitute an abuse of that discretionunless there is some evidence of innocence, fraud, or mistake in inducing the plea' " (People v Pillich, 48 AD3d 1061[2008], lv denied 11 NY3d 793 [2008]; see People v Alexander, 97 NY2d 482,485 [2002]). There is no such evidence here. Rather, the record establishes that the court properlyinformed defendant that the negotiated sentence was required to run consecutively to the priorundischarged sentence that defendant was serving at that time, and that any jail time credit to beapplied would be determined by the Department of Correctional Services (see §70.25 [2-a]; § 70.30 [3]; Correction Law § 600-a; cf. People v Lee, 64 AD3d 1236, 1237 [2009]; People vIngoglia, 305 AD2d 1002, 1003 [2003], lv denied 100 NY2d 583 [2003]).
Defendant further contends that the court failed to make an appropriate inquiry into his tworequests for substitution of counsel. The initial request for new assigned counsel was set forth ina brief notation in defense counsel's "status report" to the court indicating that defendant did notwish to accept the plea offer made during a pretrial conference. No reasons were provided fordefendant's request, and defendant did not repeat that request or raise any complaints concerningdefense counsel's representation at subsequent appearances before the court. Defendant'scontention with respect to his initial request for substitution of counsel "is encompassed by theplea and the waiver of the right to appeal except to the extent that the [*2]contention implicates the voluntariness of the plea" (People v Phillips, 56 AD3d 1163,1164 [2008], lv denied 12 NY3d 761 [2009]; see People v Williams, 6 AD3d 746, 747 [2004], lv denied3 NY3d 650 [2004]). In any event, defendant abandoned that request when he "decid[ed]. . . to plead guilty while still being represented by the same attorney" (People vHobart, 286 AD2d 916, 916 [2001], lv denied 97 NY2d 683 [2001]; see People v Munzert, 92 AD3d1291, 1292 [2012]; People vOcasio, 81 AD3d 1469, 1470 [2011], lv denied 16 NY3d 898 [2011], certdenied 565 US —, 132 S Ct 318 [2011]).
Defendant made a second request for substitution of counsel at sentencing. To the extent thatdefendant's contention with respect to the second request implicates the voluntariness of the pleaand thus survives the plea and the waiver of the right to appeal, we conclude that the court madea sufficient inquiry into that request (seegenerally People v Porto, 16 NY3d 93, 99-100 [2010]). " '[T]he court affordeddefendant the opportunity to express his objections concerning [defense counsel], and the courtthereafter reasonably concluded that defendant's . . . objections had no merit orsubstance' " (People v Adger, 83AD3d 1590, 1592 [2011], lv denied 17 NY3d 857 [2011]).
The contention of defendant that he was denied effective assistance of counsel does notsurvive either the plea of guilty or the waiver of the right to appeal inasmuch as defendant made"no showing that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [defense counsel's] allegedly poorperformance" (People v Robinson,39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotationmarks omitted]; see generally People v Nieves, 299 AD2d 888, 889 [2002], lvdenied 99 NY2d 631 [2003]). Defendant's further contention that the court erred in denyingthat part of his omnibus motion seeking to dismiss the indictment also "does not survive his validwaiver of the right to appeal . . . , nor in any event does it survive his guilty plea"(People v Baker, 49 AD3d1293 [2008], lv denied 10 NY3d 932 [2008]; see People v Crumpler, 70 AD3d 1396, 1397 [2010], lvdenied 14 NY3d 839 [2010]). Finally, defendant's contention with respect to his motion tovacate the judgment and to set aside the sentence pursuant to CPL 440.10 and 440.20 is "notproperly before us on appeal from the judgment of conviction" (People v Moore, 81 AD3d 1325[2011], lv denied 16 NY3d 897 [2011]). Present—Centra, J.P., Peradotto, Sconiersand Martoche, JJ.