| People v Coleman |
| 2019 NY Slip Op 09132 [178 AD3d 1377] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Charles E. Coleman, II, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Benjamin L. Nelson of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), renderedJune 4, 2015. The judgment convicted defendant upon his plea of guilty of burglary in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofburglary in the first degree (Penal Law § 140.30 [4]). We affirm.
Defendant contends that County Court failed to make an appropriate inquiry into his tworequests for a substitution of counsel. Initially, we note that his contention " 'isencompassed by the plea and the [valid] waiver of the right to appeal except to the extent that thecontention implicates the voluntariness of the plea' " (People v Morris, 94 AD3d 1450, 1451 [4th Dept 2012], lvdenied 19 NY3d 976 [2012]). Regardless, we conclude that "defendant abandoned hisrequest for new counsel when he 'decid[ed] . . . to plead guilty while still beingrepresented by the same attorney' " (People v Guantero, 100 AD3d 1386, 1387 [4th Dept 2012], lvdenied 21 NY3d 1004 [2013]; seePeople v Barr, 169 AD3d 1427, 1427-1428 [4th Dept 2019], lv denied 33 NY3d1028 [2019]; People v Kates, 162AD3d 1627, 1629 [4th Dept 2018], lv denied 32 NY3d 1065 [2018]).
To the extent that defendant contends that he was denied effective assistance of counsel, thatcontention also does not survive the plea of guilty because defendant has not established that anydeficiencies in defense counsel's performance infected the plea bargaining process or thatdefendant ultimately decided to enter the plea based on defense counsel's allegedly poorperformance (see People v Ware,159 AD3d 1401, 1402 [4th Dept 2018], lv denied 31 NY3d 1122 [2018];Morris, 94 AD3d at 1451). We note that defense counsel secured for defendant afavorable plea deal (see People vBooth, 158 AD3d 1253, 1255 [4th Dept 2018], lv denied 31 NY3d 1078[2018]), and that there is no reasonable probability that, "but for counsel's errors, he would nothave pleaded guilty and would have insisted on going to trial" (People v Yates, 173 AD3d 1849,1850 [4th Dept 2019] [internal quotation marks omitted]). Present—Whalen, P.J., Smith,DeJoseph, Curran and Winslow, JJ.