| People v Lewicki |
| 2014 NY Slip Op 04328 [118 AD3d 1328] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJonathan Lewicki, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 12, 2012. The judgment convicted defendant, upon his plea of guilty,of murder 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 murder in the second degree (Penal Law § 125.25[1]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea ofguilty of burglary in the third degree (§ 140.20).
In both appeals, defendant contends that Supreme Court failed to make a sufficientinquiry into his request for new counsel. We note at the outset that, to the extent thatdefendant challenges the court's failure to assign him new counsel prior to the plea, thatcontention is "encompassed by his plea and his valid waiver of the right to appeal in eachappeal except to the extent that it implicates the voluntariness of the plea" (People v Guantero, 100 AD3d1386, 1387 [2012], lv denied 21 NY3d 1004 [2013]). In any event, althoughdefendant made vague, conclusory assertions that there was a "lack of representation"with respect to his case and that defense counsel had not visited him in jail as promisedmere days before the scheduled trial on the murder charge, the record establishes thatdefendant did not express any further concerns with defense counsel before pleadingguilty, and he confirmed during the plea colloquy that he was satisfied with his attorney'srepresentation. Defendant therefore "abandoned his request for new counsel when he'decid[ed] . . . to plead guilty while still being represented by the sameattorney' " (id.).
With respect to defendant's post-plea request for substitution of counsel, we concludethat defendant "failed to proffer specific allegations of a 'seemingly serious request' thatwould require the court to engage in a minimal inquiry" (People v Porto, 16 NY3d93, 100 [2010]; see Peoplev Wilson, 112 AD3d 1317, 1318 [2013]; People v Davis, 99 AD3d 1228, 1229 [2012], lvdenied 20 NY3d [*2]1010 [2013]). Defendant's"form motion did not contain any specific factual allegations that would indicate aserious conflict with counsel" (Porto, 16 NY3d at 100-101), but rather itcontained only general assertions of dissatisfaction with defense counsel's representation(see People v Hopkins, 67AD3d 471, 471 [2009], lv denied 14 NY3d 771 [2010]; see generallyPeople v Sides, 75 NY2d 822, 824 [1990]). Defendant's further allegations thatdefense counsel "lied" to him and talked him into pleading guilty are belied by the record(see People v Carter, 304 AD2d 771, 771-772 [2003]).
Contrary to the further contention of defendant in each appeal, we conclude that thecourt did not abuse its discretion in denying his motion to set aside his guilty pleas. "Thedetermination whether to permit a defendant to withdraw a guilty plea rests within thesound discretion of the court" (People v Said, 105 AD3d 1392, 1393 [2013], lvdenied 21 NY3d 1019 [2013]), and "a court does not abuse its discretion in denyinga motion to withdraw a guilty plea where the defendant's allegations in support of themotion are belied by the defendant's statements during the plea proceeding" (People v Williams, 103 AD3d1128, 1128 [2013], lv denied 21 NY3d 915 [2013]). Here, defendant's claimthat defense counsel "told" him to plead guilty is belied by defendant's statements duringthe plea colloquy that he was satisfied with the representation of defense counsel, that hehad sufficient time to consider the plea, that no one had forced him to plead guilty, andthat he was entering the plea voluntarily (see People v Rossborough, 105 AD3d 1332, 1333 [2013],lv denied 21 NY3d 1045 [2013]; People v Ivey, 98 AD3d 1230, 1231 [2012], lvdismissed 20 NY3d 1012 [2013]; People v Garner, 86 AD3d 955, 955-956 [2011]). Contraryto the further assertions of defendant, there is no indication in the plea proceeding that hewas confused by the plea offers, that he did not understand the terms of the plea offers orthe consequences of pleading guilty, or that he was suffering from extreme emotionaldistress. Both the prosecutor and the court reviewed the terms of the plea offers in detail,and defendant repeatedly confirmed that he understood. Moreover, defendant's"conclusory and unsubstantiated claim of innocence is belied by his admissions duringthe plea colloquy" (Garner, 86 AD3d at 955; see Williams, 103 AD3d at1129).
We reject the contention of defendant that his waiver of the right to appeal isineffective with respect to the severity of the sentence imposed in each appeal. The courtmade clear to defendant that his waiver of the right to appeal would encompass anychallenge to the severity of the sentence, and defendant confirmed that he understood (see generally People vMaracle, 19 NY3d 925, 927-928 [2012]). We note in any event that the sentencein each appeal is not unduly harsh or severe in light of the brutal nature of the crime anddefendant's utter lack of remorse. Present—Smith, J.P., Peradotto, Sconiers,Whalen and DeJoseph, JJ.