Opinion
No. KA 06-01616.
February 1, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered May 30, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR RESPONDENT
Present: Hurlbutt, J.P., Centra, Fahey Peradotto and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15). Defendant failed to controvert the allegations in the second felony offender statement and thus failed to preserve for our review his contention that Supreme Court erred in sentencing him as a second felony offender ( see CPL 400.21; People v Smith, 73 NY2d 961, 962-963; People v Anderson, 35 AD3d 1209, lv denied 8 NY3d 919), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]; People v Sullivan, 4 AD3d 223, lv denied 2 NY3d 765). Contrary to the further contention of defendant, the court did not abuse its discretion in denying his application for assignment of new counsel before sentencing. We conclude that "the court made an appropriate inquiry and determined that there was no good cause for substitution of assigned counsel" ( People v Burgos, 291 AD2d 904, 904, lv denied 97 NY2d 751; see generally People v Sides, 75 NY2d 822, 824-825).