| People v Rossborough |
| 2013 NY Slip Op 02862 [105 AD3d 1332] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRonald D. Rossborough, Appellant. |
—[*1] Terrence M. Parker, District Attorney, Belmont (Amanda B. Finn of counsel), forrespondent.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.),rendered September 20, 2010. The judgment convicted defendant, upon his plea ofguilty, of burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty ofburglary in the second degree (Penal Law § 140.25 [2]), defendant contends thatCounty Court erred in summarily denying his motion to withdraw his plea and for theassignment of new counsel. With respect to that part of defendant's motion to withdrawhis plea, we note that a court need only afford a defendant a "reasonable opportunity topresent his contentions" (People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Allen, 99 AD3d1252, 1252 [2012]), and we conclude that the court did so here. Further, withrespect to the merits of that part of defendant's motion to withdraw his plea, hiscontention that the plea was coerced by defense counsel is belied by his statementsduring the plea colloquy that no one forced him to plead guilty and that he was satisfiedwith the representation of defense counsel (see People v Strasser, 83 AD3d 1411, 1411 [2011]; People v Irvine, 42 AD3d949, 949 [2007], lv denied 9 NY3d 962 [2007]). Defendant failed topreserve for our review his further contention that he was induced to enter his plea byfalse representations concerning his minimum sentencing exposure and the pendency of"bail jumping" charges against him (see People v Alvarado, 82 AD3d 458, 458 [2011], lvdenied 17 NY3d 791 [2011]). In any event, there was nothing coercive in anyalleged misstatement of the sentencing range by the court, and the record establishes thatdefendant potentially faced "bail jumping" charges that were ultimately encompassed byhis plea (see People vCerveira, 6 AD3d 294 [2004], lv denied 3 NY3d 704 [2004]).
With respect to that part of defendant's motion for the assignment of new counsel,the record belies defendant's contention that defense counsel took a position adverse tothat of defendant in his pro se motion to withdraw the plea, and thus there was no reasonfor the court to assign new counsel (see Allen, 99 AD3d at 1252-1253;Strasser, 83 AD3d at 1411-1412). Indeed, defendant failed to establish any conflictof interest or other irreconcilable conflict with defense counsel (cf. People vSides, 75 NY2d 822, 824-825 [1990]).[*2]
To the extent that defendant's contention that hewas denied effective assistance of counsel based on defense counsel's participation in thefactual component of the plea allocution survives his guilty plea (see generally People v Neal, 56AD3d 1211, 1211 [2008], lv denied 12 NY3d 761 [2009]), we reject thatcontention. The record demonstrates that the factual component of the plea allocutionwas performed under the court's supervision and that defendant's right to counsel wasadequately safeguarded (seePeople v Robbins, 33 AD3d 1127, 1128-1129 [2006]). To the extent thatdefendant's further contention that he was denied effective assistance of counsel based ondefense counsel's failure to show him the presentence report survives his guilty plea(see generally Neal, 56 AD3d at 1211), we likewise conclude that defendant'scontention lacks merit. Defendant was not entitled to review the presentence reportinasmuch as "the record establishes that defendant was represented by counsel and thatthe presentence report was reviewed by defense counsel" (People v June, 30 AD3d1016, 1017 [2006], lv denied 7 NY3d 813 [2006], reconsiderationdenied 7 NY3d 868 [2006]; see CPL 390.50 [2] [a]; see generally People vVaughan, 20 AD3d 940, 942 [2005], lv denied 5 NY3d 857 [2005]),and thus it cannot be said that there was no legitimate explanation for defense counsel'salleged deficiency in failing to show it to him (see generally People v Rivera, 71NY2d 705, 709 [1988]).
Inasmuch as the local criminal court issued a divestiture order and defendant washeld over for grand jury action and executed a waiver of indictment and consent to beprosecuted by a superior court information, we conclude that defendant's furthercontention that the court had no jurisdiction is without merit (see People vBarber, 280 AD2d 691, 692 [2001], lv denied 96 NY2d 825 [2001];People v Talham, 41 AD2d 354, 356 [1973]). Finally, defendant's contention thathe was denied the right to counsel when he waived a preliminary hearing before he wasassigned counsel is without merit (see People v Kelone, 292 AD2d 640, 641[2002], lv denied 98 NY2d 677 [2002]). Present—Centra, J.P., Peradotto,Carni, Sconiers and Whalen, JJ.