Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Ronald D. ROSSBOROUGH, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Terrence M. Parker, District Attorney, Belmont (Amanda B. Finn of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant.Terrence M. Parker, District Attorney, Belmont (Amanda B. Finn of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that County Court erred in summarily denying his motion to withdraw his plea and for the assignment of new counsel. With respect to that part of defendant's motion to withdraw his plea, we note that a court need only afford a defendant a “reasonable opportunity to present his contentions” ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;see People v. Allen, 99 A.D.3d 1252, 1252, 951 N.Y.S.2d 822), and we conclude that the court did so here. Further, with respect to the merits of that part of defendant's motion to withdraw his plea, his contention that the plea was coerced by defense counsel is belied by his statements during the plea colloquy that no one forced him to plead guilty and that he was satisfied with the representation of defense counsel ( see People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454;People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765,lv. denied9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615). Defendant failed to preserve for our review his further contention that he was induced to enter his plea by false representations concerning his minimum sentencing exposure and the pendency of “bail jumping” charges against him ( see People v. Alvarado, 82 A.D.3d 458, 458, 918 N.Y.S.2d 99,lv. denied17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094). In any event, there was nothing coercive in any alleged misstatement of the sentencing range by the court, and the record establishes that defendant potentially faced “bail jumping” charges that were ultimately encompassed by his plea ( see People v. Cerveira, 6 A.D.3d 294, 774 N.Y.S.2d 708,lv. denied3 N.Y.3d 704, 785 N.Y.S.2d 32, 818 N.E.2d 674).
With respect to that part of defendant's motion for the assignment of new counsel, the record belies defendant's contention that defense counsel took a position adverse to that of defendant in his pro se motion to withdraw the plea, and thus there was no reason for the court to assign new counsel ( see Allen, 99 A.D.3d at 1252–1253, 951 N.Y.S.2d 822;Strasser, 83 A.D.3d at 1411–1412, 919 N.Y.S.2d 454). Indeed, defendant failed to establish any conflict of interest or other irreconcilable conflict with defense counsel ( cf. People v. Sides, 75 N.Y.2d 822, 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233).
To the extent that defendant's contention that he was denied effective assistance of counsel based on defense counsel's participation in the factual component of the plea allocution survives his guilty plea ( see generally People v. Neal, 56 A.D.3d 1211, 1211, 867 N.Y.S.2d 612,lv. denied12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849), we reject that contention. The record demonstrates that the factual component of the plea allocution was performed under the court's supervision and that defendant's right to counsel was adequately safeguarded ( see People v. Robbins, 33 A.D.3d 1127, 1128–1129, 823 N.Y.S.2d 258). To the extent that defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to show him the presentence report survives his guilty plea ( see generally Neal, 56 A.D.3d at 1211, 867 N.Y.S.2d 612), we likewise conclude that defendant's contention lacks merit. Defendant was not entitled to reviewthe presentence report inasmuch as “the record establishes that defendant was represented by counsel and that the presentence report was reviewed by defense counsel” ( People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799,lv. denied7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804,reconsideration denied7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144;seeCPL 390.50[2][a]; see generally People v. Vaughan, 20 A.D.3d 940, 942, 798 N.Y.S.2d 289,lv. denied5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146), and thus it cannot be said that there was no legitimate explanation for defense counsel's alleged deficiency in failing to show it to him ( see generally People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).
Inasmuch as the local criminal court issued a divestiture order and defendant was held over for grand jury action and executed a waiver of indictment and consent to be prosecuted by a superior court information, we conclude that defendant's further contention that the court had no jurisdiction is without merit ( see People v. Barber, 280 A.D.2d 691, 692, 720 N.Y.S.2d 223,lv. denied96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;People v. Talham, 41 A.D.2d 354, 356, 342 N.Y.S.2d 921). Finally, defendant's contention that he was denied the right to counsel when he waived a preliminary hearing before he was assigned counsel is without merit ( see People v. Kelone, 292 A.D.2d 640, 641, 740 N.Y.S.2d 462,lv. denied98 N.Y.2d 677, 746 N.Y.S.2d 466, 774 N.E.2d 231).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.