| People v Blackwell |
| 2015 NY Slip Op 05380 [129 AD3d 1690] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJames L. Blackwell, Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered June 10, 2010. The judgment convicted defendant, upon his plea of guilty, offorgery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of forgery in the second degree (Penal Law § 170.10 [1]). We agreewith defendant that his purported waiver of the right to appeal is invalid. The waiver wasnot mentioned until after defendant pleaded guilty and, in any event, the record fails toestablish that County Court engaged him in an adequate colloquy to ensure that thewaiver was a knowing and voluntary choice (see People v Frysinger, 111 AD3d 1397, 1398 [2013]; see generally People vBradshaw, 18 NY3d 257, 264-267 [2011]). Contrary to defendant's furthercontention, however, the invalidity of the waiver of the right to appeal does notundermine the voluntariness of his guilty plea (see generally People v Gruber, 108 AD3d 877, 878 [2013],lv denied 22 NY3d 956 [2013]).
Defendant contends that the court lacked jurisdiction over him because he did notenter a formal plea to the indictment (see CPL 210.50). That contention is notpreserved for our review (seePeople v Miller, 27 AD3d 1017, 1017-1018 [2006]), and we conclude that itwould not warrant reversal in any event given that the parties at all times "proceeded. . . as if defendant had entered a formal plea of not guilty" (People v Rodabaugh, 26 AD3d598, 600 [2006]).
We reject defendant's contention that the court abused its discretion in denying hisrequest to substitute counsel. Even assuming, arguendo, that defendant's factualallegations were specific enough to give rise to a duty on the part of the court to considerthe request (see People vPorto, 16 NY3d 93, 99-100 [2010]; cf. People v Lewicki, 118 AD3d 1328, 1329 [2014], lvdenied 23 NY3d 1064 [2014]), we conclude that the court made the requisite"minimal inquiry" into defendant's objections concerning his attorney (People vSides, 75 NY2d 822, 825 [1990]; see People v Adger, 83 AD3d 1590, 1592 [2011], lvdenied 17 NY3d 857 [2011]), and reasonably determined that defendant had notshown good cause for substitution (see People v Linares, 2 NY3d 507, 510-512 [2004])." 'At most, defendant's allegations evinced disagreements with counsel overstrategy . . . , which were not sufficient grounds for substitution' "(People v Bradford, 118AD3d 1254, 1255 [2014], lv denied 24 NY3d 1082 [2014]). In addition, therecord does not establish that defendant made an unequivocal request to representhimself (see generally People vMorgan, 72 AD3d 1482, 1482-1483 [2010], lv denied 15 NY3d 854[2010]). We conclude that the court did not abuse its discretion in refusing to entertaindefendant's other pro se motions (see generally People v Rodriguez, 95 NY2d497, 501-502 [2000]).
Finally, we reject defendant's contention that he was denied effective assistance ofcounsel. Defense counsel was not required to support defendant's various pro se motions(see [*2]People v Adams, 66 AD3d 1355, 1356 [2009],lv denied 13 NY3d 858 [2009]; see also People v Jones, 261 AD2d 920,920 [1999], lv denied 93 NY2d 972 [1999]), and she did not take a position thatwas adverse to his interests merely by briefly defending her own performance in responseto his request to substitute counsel (see People v Fudge, 104 AD3d 1169, 1170 [2013], lvdenied 21 NY3d 1042 [2013]; see generally People v Nelson, 7 NY3d 883, 884 [2006]).To the extent that defendant contends that counsel was ineffective because she"misrepresented the initial plea offer and his ability to participate in the judicial diversionprogram," we conclude that such contention is based upon matters outside the record andthus may be raised only by way of a motion pursuant to CPL article 440 (see generally People v Ross,118 AD3d 1413, 1416 [2014], lv denied 24 NY3d 964 [2014]; People vSnitzel, 270 AD2d 836, 836-837 [2000], lv denied 95 NY2d 804 [2000]).Present—Centra, J.P., Carni, Lindley and DeJoseph, JJ.