| People v Deal |
| 2014 NY Slip Op 02072 [115 AD3d 975] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derek Deal, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J.Doyle, J.), rendered September 30, 2011, convicting him of burglary in the third degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant did not validly waive his right toappeal (see People vBradshaw, 18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Simmons, 107 AD3d1020, 1021 [2013]). However, contrary to the defendant's contention, the CountyCourt did not err in denying his motion to substitute counsel. Counsel may be substituted,at the trial court's discretion, where good cause is shown (see People v Porto, 16 NY3d93, 99-100 [2010]; Peoplev Burkett, 98 AD3d 746 [2012]). In support of such a motion, the defendantmust "make a specific factual allegation of a serious complaint about his current counsel"(People v Burkett, 98 AD3d at 748; see People v Porto, 16 NY3d at100). Here, the defendant made only a vague complaint about his dissatisfaction with theproceedings and, therefore, the court did not err in summarily denying the motion(see People v Porto, 16 NY3d at 100-101; People v Robinson, 285 AD2d478 [2001]).
The defendant failed to preserve for appellate review his claim that his plea of guiltywas not knowingly, voluntarily, and intelligently entered (see People v Lopez, 71NY2d 662, 665 [1988]; Peoplev Soria, 99 AD3d 1027 [2012]). Furthermore, the exception to the preservationrequirement does not apply here because the defendant's allocution did not castsignificant doubt on his guilt, negate an essential element of the crime, or call intoquestion the voluntariness of his plea (see People v McNair, 13 NY3d 821, 822 [2009];People v Lopez, 71 NY2d at 666; People v Soria, 99 AD3d at 1027). Inany event, a defendant is not entitled to vacatur of his plea of guilty "based on asubsequent unsupported claim of innocence, where the guilty plea was voluntarily madewith the advice of counsel following an appraisal of all the relevant factors" (Peoplev Dixon, 29 NY2d 55, 57 [1971]; see People v Soria, 99 AD3d at 1027; People v Gibson, 95 AD3d1033, 1033-1034 [2012]; People v James, 192 AD2d 555, 556 [1993]).
The defendant's contention that he was deprived of the effective assistance ofcounsel [*2]as a consequence of his attorney's failure tomake a motion to withdraw his plea based on certain post-plea statements appearing inthe presentence investigation report is without merit. Counsel's failure to make a motionthat had little or no chance of success does not constitute ineffective assistance (see People v Ingram, 80 AD3d713, 714 [2011]; People vTerrell, 78 AD3d 865, 866 [2010]; People v Goddard, 72 AD3d 839, 840 [2010]).
The defendant's contention that his plea of guilty was not knowing and voluntarybecause the County Court failed to advise him, at the time of his plea, that it would issuean order of protection in favor of the complainant, is unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit (see People v Beckers, 94AD3d 774 [2012]; People vMargillo, 69 AD3d 655 [2010]; see generally People v Nieves, 2 NY3d 310, 316 [2004];cf. People v Peque, 22NY3d 168 [2013]; People vGravino, 14 NY3d 546, 556 [2010]).
The defendant's contention that the duration of the order of protection issued in favorof the complainant exceeded the maximum permissible period is unpreserved forappellate review because the defendant did not raise this issue at sentencing or move toamend the order of protection on this ground (see CPL 470.05 [2]; People v Nieves, 2 NY3d310, 316-318 [2004]; People v Remington, 90 AD3d 678, 679 [2011]; People v Peterkin, 27 AD3d666, 667 [2006]), and we decline to reach the issue in the interest of justice.
The defendant's remaining contentions regarding the order of protection areunpreserved for appellate review, and, in any event, without merit. The defendant'sremaining contention regarding the denial of his motion to withdraw his plea is withoutmerit. Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.