| People v Farmer |
| 2015 NY Slip Op 07068 [132 AD3d 1238] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAllen Farmer, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.),rendered February 15, 2006. The judgment convicted defendant, upon his plea of guilty,of assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofassault in the first degree (Penal Law § 120.10 [1]), defendant contends thathis plea was not knowingly, voluntarily, and intelligently entered. We note at the outsetthat we agree with defendant that his waiver of the right to appeal was invalid because,inter alia, County Court "improperly conflate[d] the waiver of the right to appeal withthose rights automatically forfeited by a guilty plea" (People v Bentley, 63 AD3d 1624, 1625 [2009], lvdenied 13 NY3d 742 [2009]; see People v Moyett, 7 NY3d 892, 893 [2006]; People v Campbell, 62 AD3d1265, 1266 [2009], lv denied 13 NY3d 795 [2009]). Nevertheless,"[a]lthough defendant's contention that the plea was not knowingly, voluntarily, andintelligently entered thus is not precluded by the invalid waiver, he failed to preserve thatcontention for our review inasmuch as he did not move to withdraw the plea or to vacatethe judgment of conviction" (People v Jones, 118 AD3d 1354, 1354 [2014], lvdenied 24 NY3d 961 [2014]; see People v Wilson, 117 AD3d 1476, 1477 [2014]).Defendant likewise failed to preserve for our review his challenge to the factualsufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665[1988]), and this case does not fall within the rare exception to the preservation rule(see id. at 666). In addition, defendant failed to preserve for our review hiscontention that the court erred in failing to assign him new counsel inasmuch asdefendant informed the court that he was attempting to retain new counsel but neversought substitution of his assigned counsel (see CPL 470.05 [2]). In any event,defendant failed to show good cause for substitution of his assigned attorney inasmuch ashis objections to his assigned counsel were vague and unsubstantiated (see People v Linares, 2 NY3d507, 511 [2004]; see alsoPeople v Santiago, 111 AD3d 1383, 1384 [2013], lv denied 23 NY3d1025 [2014]).
Finally, although defendant's invalid waiver of the right to appeal does notencompass his challenge to the severity of his sentence (see e.g. People v Davis, 114AD3d 1166, 1167 [2014], lv denied 23 NY3d 1035 [2014]; People v Williams, 46 AD3d1424, 1425 [2007]), we reject that challenge. Present—Scudder, P.J., Smith,Centra, Peradotto and Carni, JJ.