| People v Allen |
| 2012 NY Slip Op 06716 [99 AD3d 1252] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kieron Allen,Appellant. (Appeal No. 1.) |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedAugust 3, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of robbery in the first degree (Penal Law § 160.15 [3]) and, in appeal No. 2,he appeals from the resentence imposed on that conviction. With respect to appeal No. 1,defendant contends that County Court erred in summarily denying his pro se motion to withdrawhis plea. We reject that contention. A court need only afford a defendant a "reasonableopportunity to present his contentions" on a motion to withdraw a guilty plea (People vTinsley, 35 NY2d 926, 927 [1974]; see People v Buske, 87 AD3d 1354, 1355 [2011], lv denied18 NY3d 882 [2012]), and the court did so here. The court properly denied the motion inasmuchas "defendant's assertions of innocence and coercion were conclusory and belied by defendant'sstatements during the plea colloquy" (People v Wright, 66 AD3d 1334, 1334 [2009], lv denied 13NY3d 912 [2009]). In addition, the record does not support defendant's contention that hismotion to withdraw the plea should have been granted on the further ground that he receivedineffective assistance of counsel (see generally People v Ford, 86 NY2d 397, 404 [1995];People v Patterson, 9 AD3d899, 900 [2004]). We reject defendant's contention that defense counsel took a positionadverse to that of defendant in his pro se motion to withdraw the plea, and thus there was noreason for the court to assign new counsel (see People v Strasser, 83 AD3d 1411, 1411-1412 [2011]; People v McKoy, 60 AD3d 1374,1374-1375 [2009], lv denied 12 NY3d 856 [2009]).
With respect to appeal No. 2, defendant failed to preserve for our review his contention thathis resentence as a second felony offender constituted a greater sentence inasmuch as he did notobject to the allegedly greater sentence, nor did he move to withdraw his guilty plea or to vacatethe judgment of conviction on that ground (see People v Sprague, 82 AD3d 1649, 1649 [2011], lvdenied 17 NY3d 801 [2011]; People v Coutts, 277 AD2d 1029, 1029 [2000]). Wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL [*2]470.15 [6] [a]). We agree withdefendant, however, that the court erred in allowing him to proceed pro se during resentencing."Before allowing a defendant to proceed pro se, the court must conduct a searching inquiry toensure that the waiver of the right to appointed counsel is 'unequivocal, voluntary and intelligent'" (People v LaValle, 3 NY3d88, 106 [2004], quoting People v Smith, 92 NY2d 516, 520 [1998]). The courtconducted no such inquiry in this case, and "[t]he sentencing court erred by permitting defendantto represent himself at his ultimate sentencing proceeding" (People v Adams, 52 AD3d 243, 243 [2008], lv denied 11NY3d 829 [2008]). We conclude that the tainted proceeding had an adverse impact on defendant,warranting reversal of the resentence and remittal of this matter for the court to ascertain thatdefendant has been afforded the right to counsel and for resentencing (cf. People v Johnson, 94 AD3d1496, 1497 [2012]; see generallyPeople v Wardlaw, 6 NY3d 556, 559 [2006]). We therefore reverse the resentence inappeal No. 2 and remit the matter to County Court for further proceedings in accordance withdefendant's right to counsel and for resentencing. Present—Centra, J.P., Fahey, Peradotto,Carni and Sconiers, JJ.