| People v Jones |
| 2020 NY Slip Op 03146 [184 AD3d 901] |
| June 4, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Massi Jones, Also Known as Black,Appellant. |
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered October 31, 2017, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the third degree.
Defendant was charged in an indictment with multiple drug-related crimes. Counsel from thePublic Defender's office was assigned to represent him. Early in the proceedings, it was disclosedthat an actual or potential conflict of interest existed with regard to counsel's representation ofdefendant at trial due to his representation of a witness, whose identity was not disclosed. Inaddition, defendant was apparently dissatisfied with counsel's representation and lodgedcomplaints with County Court. In accordance with County Court's order, counsel continued torepresent defendant during the course of the Huntley and Wade hearings thatfollowed. At the conclusion of these hearings, counsel was relieved and the Conflict Defenderwas assigned to represent defendant. Prior to trial, defendant pleaded guilty to attempted criminalpossession of a controlled substance in the third degree in satisfaction of the charges contained inthe indictment, and he also waived his right to appeal. In accordance with the terms of the pleaagreement, he was sentenced as a second felony offender to 4
Defendant contends that his guilty plea was not knowingly, voluntarily and intelligentlyentered. Although this claim is not precluded by defendant's unchallenged waiver of the right toappeal, it has not been preserved for our review as the record does not reflect that he made anappropriate postallocution motion (seePeople v Drake, 179 AD3d 1221, 1222 [2020]; People v Almonte, 179 AD3d 1222, 1224 [2020]). Moreover, theexception to the preservation requirement is inapplicable as defendant did not make anystatements during the proceedings that negated his guilt or called into question the voluntarinessof his plea (see People v Sabin, 179AD3d 1401, 1401 [2020]; People v Drake, 179 AD3d at 1222).
Defendant also asserts that he was deprived of the effective assistance of counsel due toCounty Court's failure to conduct a further inquiry into the adequacy of counsel's representationand his request for new counsel. Inasmuch as this claim does not implicate the voluntariness ofdefendant's guilty plea, it is foreclosed by his uncontested appeal waiver (see People v Gumbs, 182 AD3d701, 702 [2020]; People vHawkins, 177 AD3d 1035, 1035 [2019]). In any event, County Court responded todefendant's request and assigned new counsel to represent him following the Wade andHuntley hearings. His allegations with regard to counsel's other alleged deficienciesconcern matters outside the record and are more properly the subject of a CPL article 440 motion(see People v Gumbs, 182 AD3d at 703; People v Thomas, 178 AD3d 1237, 1238 [2019]).
Mulvey, Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.