| People v Ozuna |
| 2019 NY Slip Op 07963 [177 AD3d 1040] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Heddekel Ozuna, Appellant. |
Jacob A. Vredenburgh, Wynantskill, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 25, 2017, convicting defendant upon his plea of guilty of the crimeof promoting prison contraband in the first degree.
In satisfaction of a five-count sealed indictment, defendant pleaded guilty topromoting prison contraband in the first degree and waived his right to appeal.Defendant subsequently requested that new counsel be assigned and moved, on multipleoccasions, to withdraw his plea. County Court denied defendant's requests and,consistent with the terms of the plea agreement, sentenced defendant, as a second felonyoffender, to a prison term of 3
We affirm. Defendant challenges the voluntariness of the plea and contends thatCounty Court abused its discretion in summarily denying his motion to withdraw hisplea. Defendant's challenge to the voluntariness of the plea survives the unchallengedappeal waiver and is preserved by his motion to withdraw his guilty plea (see People v Jackson, 163AD3d 1273, 1274 [2018], lv denied 32 NY3d 1065 [2018]; People v Morey, 110 AD3d1378, 1379 [2013], lv denied 23 NY3d 965 [2014]). Nevertheless, we finddefendant's challenges to be without merit. The record reflects that defendantacknowledged, in response to County Court's inquiries during the plea colloquy, that heunderstood the provisions of the plea agreement, was not being threatened or forced toplead guilty and indicated that he had sufficient time to speak with counsel and wassatisfied with counsel's representation. Upon entering his guilty plea, defendant expresslydetailed the conduct in which he engaged that constituted the crime at issue and made nostatements during the plea colloquy that called into question his actual innocence. Inview of the foregoing, defendant's assertion that his plea was involuntary is belied by therecord (see People vPalmer, 174 AD3d 1118, 1119 [2019]; People v Torres, 165 AD3d 1325, 1326 [2018], lvdenied 32 NY3d 1210 [2019]; People v Brandon, 112 AD3d 1069, 1070 [2013]). Further,absent some evidence of innocence, fraud or mistake in the plea's inducement, we areunpersuaded that County Court abused its discretion in failing to inquire further aboutdefendant's unsubstantiated claim of innocence or in denying defendant's motion towithdraw his plea (see People v Palmer, 174 AD3d at 1119; People v Nealon, 166 AD3d1225, 1226 [2018]).
We also find without merit defendant's contention that County Court erred indenying his request for substitute counsel given that, upon inquiry by the court as todefendant's complaints about counsel, defendant failed to demonstrate "good cause" forsuch substitution (People vLinares, 2 NY3d 507, 510 [2004]; see People v Steed, 17 AD3d 928, 929 [2005], lvdenied 5 NY3d 770 [2005]; People v Cherry, 12 AD3d 949, 950 [2004], lvdenied 4 NY3d 797 [2005]). Finally, defendant's plea of guilty precludes any claimwith regard to his right to testify before the grand jury (see People v Steed, 17AD3d at 929). Defendant's remaining contentions, including those in his pro sesupplemental brief, have been considered and are without merit.
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.