| People v Clemons |
| 2022 NY Slip Op 00594 [201 AD3d 1355] |
| January 28, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Napoleon Clemons, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.),rendered July 23, 2019. The judgment convicted defendant upon his plea of guilty of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, criminal possession of a weapon (CPW) in the second degree (Penal Law§ 265.03 [3]), defendant contends that Supreme Court failed to make the requisiteminimal inquiry into his serious request to substitute counsel. Even assuming, arguendo, thatdefendant's contention "is not foreclosed by his guilty plea because it 'implicates thevoluntariness of the plea' " (People v Jeffords, 185 AD3d 1417, 1418 [4th Dept 2020], lvdenied 35 NY3d 1095 [2020]), we conclude that "defendant abandoned his request for newcounsel when he 'decid[ed] . . . to plead guilty while still being represented by thesame attorney' " (People vGuantero, 100 AD3d 1386, 1387 [4th Dept 2012], lv denied 21 NY3d 1004[2013]; see Jeffords, 185 AD3d at 1418; cf. People v Morris, 183 AD3d 1254, 1254-1255 [4th Dept 2020],lv denied 35 NY3d 1047 [2020]).
Defendant further contends that the plea was not knowingly, voluntarily, and intelligentlyentered because the court neglected to ask him if the firearm in question was loaded, which is anelement of CPW in the second degree as charged in the indictment. That contention is actually achallenge to the factual sufficiency of the plea allocution, and it is not preserved for our reviewinasmuch as defendant did not move to withdraw his plea or to vacate the judgment of conviction(see People v Pryce, 148 AD3d1629, 1629-1630 [4th Dept 2017], lv denied 29 NY3d 1085 [2017]). Contrary todefendant's contention, this case does not fall within the narrow exception to the preservationrequirement set forth in People v Lopez (71 NY2d 662, 666-667 [1988]; cf. People v Rosario, 166 AD3d1498, 1498 [4th Dept 2018]).
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions and conclude that they do not require reversal or modification of the judgment.Present—Whalen, P.J., Centra, NeMoyer and Winslow, JJ.