Opinion
210 KA 19-01374
03-19-2021
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 robbery in the second degree ( Penal Law § 160.10 [1] ). By failing to move to withdraw his guilty plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that his guilty plea was not knowingly or voluntarily entered (see People v Liepke , 184 A.D.3d 1109, 1109, 123 N.Y.S.3d 883 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 410, 152 N.E.3d 1211 [2020] ; People v. Turner , 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ). This case does not fall within the rare exception to the preservation requirement because nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea (see People v. Davis , 134 A.D.3d 1459, 1460, 21 N.Y.S.3d 657 [4th Dept. 2015], lv denied 27 N.Y.3d 1150, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ).
Defendant contends that the court did not appropriately inquire into his request for a substitution of counsel. Even assuming, arguendo, that the contention survives his guilty plea (see People v. Morris , 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ), we conclude that he "abandoned his request for new counsel when he decid[ed] ... to plead guilty while still being represented by the same attorney" ( 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] [internal quotation marks omitted]).
Defendant's further contention that he was denied effective assistance of counsel does not survive his guilty plea where, as here, "[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney[’]s allegedly poor performance" ( Davis , 134 A.D.3d at 1459-1460, 21 N.Y.S.3d 657 [internal quotation marks omitted]; see People v. Coleman , 178 A.D.3d 1377, 1378, 112 N.Y.S.3d 679 [4th Dept. 2019], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 30, 149 N.E.3d 868 [2020] ). To the extent that defendant's contention survives the plea, it concerns matters outside the record that must be raised by way of a motion pursuant to CPL article 440 (see People v. Lopez , 189 A.D.3d 2152, 2153, 134 N.Y.S.3d 898 [4th Dept. 2020] ).