| People v Morris |
| 2020 NY Slip Op 02575 [183 AD3d 1254] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael Morris, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Brittney Clark of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., ofcounsel), for respondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered May 9, 2016. The appeal was held by this Court by order entered October 4,2019, decision was reserved and the matter was remitted to Onondaga County Court forfurther proceedings (176 AD3d 1635 [4th Dept 2019]). The proceedings were held andcompleted.
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 attempted murder in the first degree (Penal Law §§ 110.00,125.27 [1] [a] [viii]; [b]) and assault in the first degree (§ 120.10 [1]). Wepreviously held the case, reserved decision and remitted the matter to County Court for aruling on that part of defendant's postplea pro se motion seeking substitution of counsel(People v Morris, 176 AD3d 1635, 1636 [4th Dept 2019]).
Contrary to defendant's contention, we conclude that the court, upon remittal,properly denied the motion insofar as it sought substitution of counsel and did not err infailing to make a minimal inquiry into defendant's objections with respect to defensecounsel. Defendant "failed to proffer specific allegations of a 'seemingly serious request'that would require the court to engage in a minimal inquiry" (People v Porto, 16 NY3d93, 100 [2010]; see Peoplev Konovalchuk, 148 AD3d 1514, 1516 [4th Dept 2017], lv denied 29NY3d 1082 [2017]). Indeed, defendant's allegations that defense counsel "tricked" himinto pleading guilty are belied by the record (see People v Lewicki, 118 AD3d 1328, 1329 [4th Dept2014], lv denied 23 NY3d 1064 [2014]).
We reject defendant's further contention that the court should have granted hismotion to withdraw his plea. It is well settled that " '[p]ermission to withdraw aguilty plea rests solely within the court's discretion . . . , and refusal topermit withdrawal does not constitute an abuse of that discretion unless there is someevidence of innocence, fraud, or mistake in inducing the plea' " (People v Leach, 119 AD3d1429, 1430 [4th Dept 2014], lv denied 24 NY3d 962 [2014]). Here, defensecounsel's misstatements to defendant regarding his sentence are not, standing alone," 'dispositive' of the issue whether defendant's plea was knowingly andvoluntarily entered" (People vJohnson, 24 AD3d 1259, 1259 [4th Dept 2005], lv denied 6 NY3d 814[2006]; see People v Bryant,1 AD3d 966, 966-967 [4th Dept 2003]). The record establishes that the courtexplained defendant's sentence during the plea colloquy, and defendant acknowledgedthat he was entering the plea knowingly and voluntarily. Defendant's related claims ofcoercion and trickery are unsupported by the record (see Leach, 119 AD3d at1430; People v Campbell,62 AD3d 1265, 1266 [4th Dept 2009], lv denied 13 NY3d 795 [2009]).Additionally, while the record reflects that defendant had a history of requiring speechand language therapy, as well as behavioral issues, there is nothing in the record tosuggest that defendant " 'lacked the capacity to understand the pleaproceeding' " (People vSmith, 37 AD3d 1141, 1142 [4th Dept 2007], lv denied 9 NY3d 851[2007], denied reconsideration 9 NY3d 926 [2007]; see People v Smith, 5 AD3d1095, 1095 [4th Dept 2004], lv denied 2 NY3d 807 [2004]; see also People v Scott, 144AD3d 1597, 1598 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]). Therecord establishes that defendant was "examined and found to be competent prior to theplea proceeding and that the plea colloquy was thorough" (People v Nudd, 53 AD3d1115, 1115 [4th Dept 2008], lv denied 11 NY3d 834 [2008]). We thereforeconclude that defendant "knowingly and intelligently, with neither confusion norcoercion present . . . , and with a full opportunity to assess the advantagesand disadvantages of a plea versus a trial . . . , made his election" (People v Johnson, 122 AD3d1324, 1325 [4th Dept 2014] [internal quotation marks omitted]).
To the extent that defendant's contention that he was denied effective assistance ofcounsel survives his guilty plea, we conclude that it lacks merit. Defendant was affordedmeaningful representation inasmuch as he "receive[d] an advantageous plea and nothingin the record casts doubt on the apparent effectiveness of counsel" (People vOliver [appeal No. 2], 162 AD3d 1722, 1723 [4th Dept 2018]; see Campbell,62 AD3d at 1266). Contrary to defendant's contention, we conclude that the sentence isnot unduly harsh or severe. Finally, we have reviewed defendant's remaining contentionsand conclude that none warrants reversal or modification of the judgment.Present—Smith, J.P., Peradotto, Lindley, Curran and DeJoseph,JJ.