Opinion
1105 KA 19-01903
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Napoleon CLEMONS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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, inter alia, criminal possession of a weapon (CPW) in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court failed to make the requisite minimal inquiry into his serious request to substitute counsel. Even assuming, arguendo, that defendant's contention "is not foreclosed by his guilty plea because it ‘implicates the voluntariness of the plea’ " ( People v. Jeffords , 185 A.D.3d 1417, 1418, 128 N.Y.S.3d 112 [4th Dept. 2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 303, 155 N.E.3d 796 [2020] ), we conclude that "defendant abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " ( People v. Guantero , 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013]; see Jeffords , 185 A.D.3d at 1418, 128 N.Y.S.3d 112 ; cf. People v. Morris , 183 A.D.3d 1254, 1254-1255, 123 N.Y.S.3d 784 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 838, 151 N.E.3d 519 [2020] ).
Defendant further contends that the plea was not knowingly, voluntarily, and intelligently entered because the court neglected to ask him if the firearm in question was loaded, which is an element of CPW in the second degree as charged in the indictment. That contention is actually a challenge to the factual sufficiency of the plea allocution, and it is not preserved for our review inasmuch as defendant did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Pryce , 148 A.D.3d 1629, 1629-1630, 51 N.Y.S.3d 296 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017]). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666-667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; cf. People v. Rosario , 166 A.D.3d 1498, 1498, 86 N.Y.S.3d 367 [4th Dept. 2018].
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that they do not require reversal or modification of the judgment.