| People v Harris |
| 2018 NY Slip Op 07749 [166 AD3d 801] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrea Harris, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevinof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Matthew D'Emic, J.), rendered August 10, 2016, convicting him of assault in the firstdegree and assault in the second degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying, without ahearing, the defendant's motion to withdraw his plea of guilty. "A motion to withdraw aplea of guilty is addressed to the sound discretion of the Supreme Court, and, as a generalrule, its determination will not be disturbed absent an improvident exercise of discretion"(People v Dowling, 158AD3d 640, 640 [2018]; see CPL 220.60 [3]). Here, the record demonstratesthat the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered.While the presentence report indicated that the defendant had a history of mental illnessand only an eighth-grade education, there is no basis in the record to support hiscontention that he lacked the capacity to understand the proceedings against him, or thathe was unable to assist in his defense (see CPL 730.30 [1]; People v Tissiera, 154 AD3d720 [2017]; People vRodriguez, 152 AD3d 800 [2017]; People v Morris, 147 AD3d 1083 [2017]; People v Narbonne, 131 AD3d626 [2015]; People vM'Lady, 59 AD3d 568 [2009]; People v Hollis, 204 AD2d 569 [1994]).To the contrary, the defendant's responses at the plea and sentencing proceedings wereappropriate and did not indicate that he was incapacitated (see People v Tissiera,154 AD3d at 721; People v Morris, 147 AD3d at 1084).
Furthermore, the Supreme Court providently exercised its discretion in denying thedefendant's motion to substitute counsel. "The right of an indigent criminal defendant tothe services of a court-appointed lawyer does not encompass a right to appointment ofsuccessive lawyers at defendant's option" (People v Washington, 25 NY3d 1091, 1095 [2015][internal quotation marks omitted]; see People v Sides, 75 NY2d 822, 824[1990]; People v Wright,147 AD3d 1088, 1089 [2017]). "Nevertheless, the right to be represented by counselof one's own choosing is a valued one, and a defendant may be entitled to new assignedcounsel upon showing good cause for a substitution, such as a conflict of interest or otherirreconcilable conflict with counsel" (People v Sides, 75 NY2d at 824 [internalquotation marks omitted]; see People v Wright, 147 AD3d at 1089). "Where aseemingly serious request is made, the trial court is obligated to conduct at least a'minimal inquiry' [*2]to determine the nature of theconflict and a possible resolution" (People v Ward, 121 AD3d 1026, 1027 [2014]). Here, thecourt made the requisite "minimal inquiry" into the alleged lack of communicationbetween the defendant and defense counsel (see People v Mahoney, 110 AD3d 923 [2013]; People v Reese, 23 AD3d1034, 1035 [2005]), and appropriately determined that the communication issues didnot warrant substitution of counsel (see People v Brown, 154 AD3d 1004, 1006 [2017];People v Robinson, 285 AD2d 478 [2001]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708, 712-713 [1998];People v Baldi, 54 NY2d 137, 147 [1981]).
As the People correctly concede, the defendant's purported waiver of his right toappeal was invalid (see People vBradshaw, 18 NY3d 257, 264-267 [2011]). The Supreme Court's colloquyfailed to ensure that the defendant understood the distinction between affirmativelywaiving the right to appeal and automatically forfeiting certain rights upon entering aplea of guilty (see People vDesir, 161 AD3d 1102 [2018]; People v Fortier, 130 AD3d 642 [2015]). Thus, thepurported waiver does not preclude review of the defendant's excessive sentence claim.However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Balkin, J.P., Sgroi, Miller and Connolly, JJ., concur.