| People v Thaxton |
| 2021 NY Slip Op 01159 [191 AD3d 1166] |
| February 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karim Thaxton, Appellant. |
Stephen J. Carney, Schenectady, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered June 8, 2018, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and agreed to waive his right to appeal. At sentencing,defendant moved pro se to withdraw his guilty plea, alleging, among other things, that his pleawas not knowingly, voluntarily and intelligently entered allegedly because an omnibus motionwas filed without his input, he was not present for any hearings and he was informed that, in theevent that he wanted to view certain discovery, the plea offer would be withdrawn. Defensecounsel, in response to County Court's inquiry, stated that, although he notarized the affidavit inthe motion to withdraw the plea, he did "not prescribe to any of the language contained withinthe affidavit [and did] not necessarily even agree with the affidavit." The court, after providingdefendant and the People an opportunity to be heard, reviewed the plea colloquy and denied thepro se motion. The court then sentenced defendant, as a second felony offender, in accordancewith the terms of the plea agreement, to 10 years in prison followed by three years of postreleasesupervision. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that the waiver of the right to appealis invalid. Prior to accepting the plea offer, defendant was informed that a waiver of the right toappeal was a condition of the plea agreement. The record reflects that, during the plea colloquy,County Court advised defendant that the right to appeal was separate and distinct from the rightsautomatically forfeited by his guilty plea, which defendant indicated he understood (see People v Lopez, 6 NY3d 248,256 [2006]; People v Purnell, 186AD3d 1834, 1834 [2020], lv denied 36 NY3d 975 [2020]). Defendant also executeda comprehensive written waiver of appeal after reviewing it with counsel and assuring the courtthat he understood it and had no questions (see People v Burnett, 186 AD3d 1837, 1838 [2020], lvdenied 36 NY3d 969 [2020]). Notwithstanding the fact that defendant gave brief responses tothe court's inquiries, we are satisfied that the record reflects that he understood the nature andconsequences of the appeal waiver and knowingly, voluntarily and intelligently waived the rightto appeal (see People v Thomas, 34NY3d 545, 558-563 [2019]; People v Lopez, 6 NY3d at 256; People v Williams, 185 AD3d1359, 1360 [2020]). Given the valid appeal waiver, defendant's challenge to the harshness ofthe agreed-upon sentence is foreclosed (see People v Purnell, 186 AD3d at 1835).
We also find without merit defendant's contention that his motion to withdraw his plea wasundermined when defense counsel expressed a position adverse to defendant's interest and, [*2]as such, County Court erred by not assigning him new counsel torepresent him on the motion. "It is well settled that a defendant has a right to the effectiveassistance of counsel on his or her motion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964,966 [2013] [citations omitted]; accordPeople v Faulkner, 168 AD3d 1317, 1318 [2019]). "While defense counsel need notsupport a pro se motion to withdraw a plea, counsel may not become a witness against his or herclient, make remarks that affirmatively undermine a defendant's arguments, or otherwise take aposition that is adverse to the defendant" (People v Oliver, 158 AD3d 990, 991 [2018] [internal quotationmarks and citations omitted]; see Peoplev Maldonado, 183 AD3d 1129, 1129-1130 [2020]). "[C]ounsel takes a position adverseto his [or her] client when stating that the defendant's motion lacks merit, or that the defendant,who is challenging the voluntariness of his [or her] guilty plea, made a knowing plea that was inhis [or her] best interest" (People vWashington, 25 NY3d 1091, 1095 [2015] [internal quotation marks, ellipsis, bracketsand citations omitted]), at which point a conflict of interest arises and new counsel must beassigned on the motion (see People v Mitchell, 21 NY3d at 966; People vMaldonado, 183 AD3d at 1130).
Here, defense counsel, in response to an inquiry by County Court as to whether the motionwas being made solely by defendant, stated that he had notarized the affidavit but that he did "notnecessarily even agree with the affidavit." We are unpersuaded that counsel's statement, whichmade no further elaboration as to the legal basis or merits of the motion, affirmativelyundermined defendant's assertions or amounted to an adverse position against defendant so as tocreate an actual conflict (see People v Washington, 25 NY3d at 1095; compare People v McCray, 106 AD3d1374, 1375 [2013]). As such, we find no error in County Court failing to assign new counselon the motion (see People v Washington, 25 NY3d at 1095; People v Leeper, 298AD2d 190, 190 [2002], lv denied 99 NY2d 560 [2002]; compare People vMaldonado, 183 AD3d at 1129-1130; People v Faulkner, 168 AD3d at 1318-1319;People v Tyler, 130 AD3d1383, 1385 [2015]; People v McCray, 106 AD3d at 1374-1375).
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.