| People v Guantero |
| 2012 NY Slip Op 07452 [100 AD3d 1386] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Fernando P.Guantero, 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 (Barry M. Donalty, J.), rendered July29, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon aplea of guilty of criminal contempt in the first degree (Penal Law § 215.51 [c]) and, inappeal No. 2, he appeals from a judgment convicting him upon a plea of guilty of attemptedburglary in the second degree (§§ 110.00, 140.25 [2]). With respect to both appeals,defendant contends that his waiver of the right to appeal was not knowingly, voluntarily, andintelligently entered. We reject that contention (see generally People v Lopez, 6 NY3d 248, 256 [2006]; Peoplev Hidalgo, 91 NY2d 733, 735 [1998]). "The responses of defendant to County Court'squestions during the plea colloquy establish that he understood the consequences of waiving theright to appeal and voluntarily waived that right" (People v Ruffins, 78 AD3d 1627, 1628 [2010]; see People v Dunham, 83 AD3d1423, 1424 [2011], lv denied 17 NY3d 794 [2011]). Further, the court " 'made clearthat the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof' "(People v McCarthy, 83 AD3d1533, 1533-1534 [2011], lv denied 17 NY3d 819 [2011]), and we note thatdefendant executed a written waiver of the right to appeal (see People v Jones, 96 AD3d 1637, 1637 [2012]; People v Colucci, 94 AD3d 1419,1420 [2012], lv denied 19 NY3d 959 [2012]).
Although the contention of defendant with respect to both appeals that his plea was notvoluntarily entered survives his valid waiver of the right to appeal (see Dunham, 83AD3d at 1424), defendant failed to move to withdraw his plea or to vacate the judgment ofconviction on that ground and thus failed to preserve that contention for our review (see People v Oldshield, 93 AD3d1238, 1238 [2012]; Dunham, 83 AD3d at 1424). Contrary to defendant's contentionin each appeal, this case does not fall within the narrow exception to the preservationrequirement set forth in People v Lopez (71 NY2d 662, 666 [1988]). Finally, defendantcontends in each appeal that the court erred in refusing to assign him new counsel withoutinquiring into the grounds for substitution. We note at the outset that defendant's contention isencompassed by his plea and his valid waiver of the right to appeal in each appeal except to theextent that it implicates the [*2]voluntariness of the plea (see People v Morris, 94 AD3d1450, 1451 [2012], lv denied 19 NY3d 976 [2012]; People v Phillips, 56 AD3d 1163,1164 [2008], lv denied 12 NY3d 761 [2009]). In any event, defendant abandoned hisrequest for new counsel when he "decid[ed] . . . to plead guilty while still beingrepresented by the same attorney" (People v Hobart, 286 AD2d 916, 916 [2001], lvdenied 97 NY2d 683 [2001]; see Morris, 94 AD3d at 1451; People v Munzert, 92 AD3d 1291,1292 [2012]). Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.