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refusing to review constitutional challenge to statute that was "unpreserved for our review, since it was not raised before the trial court"
Summary of this case from Scott v. GrahamOpinion
Nos. 12749,13962
Decided and Entered: November 14, 2002
Appeals (1) from a judgment of the County Court of Columbia County (Czajka, J.), rendered November 1, 2000, convicting defendant upon his plea of guilty of the crimes of rape in the second degree (three counts), sodomy in the second degree, sexual abuse in the second degree (four counts) and endangering the welfare of a child, and (2) by permission, from an order of said court, entered April 5, 2002, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
James J. Brearton, Latham, for appellant.
Beth G. Cozzolino, District Attorney, Hudson (Kenneth L. Golden of counsel), for respondent.
Before: Cardona, P.J., Peters, Spain, Carpinello and Rose, JJ.
MEMORANDUM AND ORDER
Defendant was indicted on numerous counts stemming from his sexual contact with a 13-year-old girl. Prior to arraignment, defendant lodged a complaint against his assigned counsel with the Committee on Professional Standards. At his subsequent arraignment, however, defendant was unequivocal that he wanted his assigned counsel to continue to represent him. Thereafter, he changed his mind yet again and requested that new counsel be assigned. At a hearing on this request, County Court inquired regarding defendant's dissatisfaction with his counsel. Based upon defendant's inability to articulate any reason for his request, the court found that substitution was not warranted. After pleading guilty to all charges, defendant was sentenced to concurrent prison terms of 2 to 6 years on the four felony counts and concurrent terms of one year on the misdemeanor counts. Defendant now appeals from the judgment of conviction, as well as from the denial of his postconviction motion to vacate the judgment.
Defendant challenges his conviction on numerous grounds, including the sufficiency of the indictment, the constitutionality of the statutes defining several offenses, the failure to substitute assigned counsel and the harshness of the sentences. However, the record in this matter demonstrates that defendant's guilty plea included a knowing, voluntary and intelligent waiver of his right to appeal, which precludes our consideration of the claimed deficiencies in the indictment (see People v. Vega, 268 A.D.2d 686, 687, lv denied 95 N.Y.2d 839) or the harshness of the sentences imposed (see People v. Hidalgo, 91 N.Y.2d 733, 737;People v. Sczepankowski, 293 A.D.2d 212, 215-216). Were we to reach the sentencing issue, however, we would find nothing in the record to suggest that the sentences were an abuse of discretion or that extraordinary circumstances exist warranting their modification (see People v. Grier, 290 A.D.2d 649, 649, lv denied 97 N.Y.2d 755; People v. Dolphy, 257 A.D.2d 681, 685, lv denied 93 N.Y.2d 872).
We turn next to defendant's challenge to the statutes defining the crimes of rape in the second degree, sodomy in the second degree and sexual abuse in the second degree on equal protection grounds. According to defendant, they are constitutionally infirm because they either contained a marital exception or were not gender neutral. While this claim survives his guilty plea (see People v. Lee, 58 N.Y.2d 491, 493;People v. Buyce, 97 A.D.2d 632, 632), it is nonetheless unpreserved for our review, since it was not raised before the trial court (see People v. Mower, 97 N.Y.2d 239, 245; People v. Dozier, 52 N.Y.2d 781, 783;People v. Harris, 288 A.D.2d 610, 618, lvs granted 97 N.Y.2d 703, 705).
The 2000 amendments to these statutes, effective February 1, 2001, made Penal Law §§ 130.45 and 130.60 gender neutral and eliminated the marital exception to Penal Law § 130.30 (see L 2000, ch 1, §§ 33, 36, 40).
To the extent that defendant's claim of error in the refusal to substitute assigned counsel can be viewed as a claim of ineffective assistance in making that plea, which would survive waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10; People v. Johnson, 288 A.D.2d 501, 502; People v. Conyers, 227 A.D.2d 793, 793, lv denied 88 N.Y.2d 982), we find that defendant's request for new assigned counsel was properly denied. Although County Court made a thorough inquiry as to the reasons for defendant's dissatisfaction with his assigned counsel, defendant was unable to identify any specific inadequacies in that representation. Accordingly, County Court properly found that defendant had not made the required showing of good cause to warrant substitution (see People v. Sides, 75 N.Y.2d 822, 824; People v. Halpin, 261 A.D.2d 647, 647, lv denied 93 N.Y.2d 971). Furthermore, there is no indication that defendant's assigned counsel rendered less than meaningful representation or otherwise prejudiced defendant (see Strickland v. Washington, 466 U.S. 668; People v. Ford, 86 N.Y.2d 397, 405).
Finally, as regards defendant's motion to vacate the judgment of conviction, defendant maintains that a hearing on this motion was warranted due to new evidence that a key statement was perjured (see CPL 440.10 [c]). Essentially, defendant alleges that the indictment against him was supported by a correction officer's perjured statement in order to "cover up" a jailhouse beating. We find no merit to this claim, particularly since the statement in question was made well after the grand jury acted to indict defendant.
Cardona, P.J., Peters, Spain and Rose, JJ., concur.
ORDERED that the judgment and order are affirmed.