| People v Boswell |
| 2014 NY Slip Op 03136 [117 AD3d 1493] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristopher Boswell, Sr., Appellant. (Appeal No. 1.) |
James S. Kernan, Public Defender, Lyons (Richard W. Youngman of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered July 5, 2011. The judgment convicted defendant, upon his plea of guilty, ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of assault in the second degree (Penal Law § 120.05[3]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea ofguilty of promoting prison contraband in the first degree (§ 205.25 [1]). Inappeal No. 3, defendant appeals from a judgment convicting him upon his plea of guiltyof aggravated criminal contempt (§ 215.52 [1]). Defendant contends withrespect to each appeal that he was denied effective assistance of counsel. That contentiondoes not survive his guilty plea in any appeal inasmuch as "defendant failed todemonstrate that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [defense counsel's] allegedlypoor performance" (People vDurodoye, 113 AD3d 1130, 1131 [2014] [internal quotation marks omitted]; see People v Wright, 66 AD3d1334, 1334 [2009], lv denied 13 NY3d 912 [2009]). To the extent thatdefendant's contention involves matters outside the record on appeal, we note that it mustbe raised by way of a motion pursuant to CPL 440.10 (see People v Russell, 83 AD3d1463, 1465 [2011], lv denied 17 NY3d 800 [2011]).
We reject defendant's further contention in each appeal that the court's failure toaddress his request for substitution of counsel requires reversal. In support of his request,defendant made only conclusory assertions that "did not 'suggest a serious possibility ofgood cause for substitution' " (People v Thagard, 28 AD3d 1097, 1098 [2006], lvdenied 7 NY3d 795 [2006]; see People v Hyson, 111 AD3d 1387, 1388 [2013]). In anyevent, defendant abandoned his request when he " 'decid[ed] . . . toplead guilty while still being represented by the same attorney' " (People v Guantero, 100 AD3d1386, 1387 [2012], lv denied 21 NY3d 1004 [2013]; see People v Morris, 94 AD3d1450, 1451 [2012], lv denied 19 NY3d 976 [2012]; People v Munzert, 92 AD3d1291, 1292-1293 [2012]). Present—Scudder, P.J., Centra, Fahey, Sconiersand Valentino, JJ.