Opinion
2012-11-9
The PEOPLE of the State of New York, Respondent, v. Fernando P. GUANTERO, Defendant–Appellant. (Appeal No. 1.)
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[c] ) and, in appeal No. 2, he appeals from a judgment convicting him upon a plea of guilty of attempted burglary in the second degree (§§ 110.00, 140.25[2] ). With respect to both appeals, defendant contends that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered. We reject that contention ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46). “The responsesof defendant to County Court's questions during the plea colloquy establish that he understood the consequences of waiving the right to appeal and voluntarily waived that right” ( People v. Ruffins, 78 A.D.3d 1627, 1628, 910 N.Y.S.2d 625;see People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258,lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097). Further, the court “ ‘made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof’ ” ( People v. McCarthy, 83 A.D.3d 1533, 1533–1534, 921 N.Y.S.2d 755,lv. denied17 N.Y.3d 819, 929 N.Y.S.2d 808, 954 N.E.2d 99), and we note that defendant executed a written waiver of the right to appeal ( see People v. Jones, 96 A.D.3d 1637, 1637, 946 N.Y.S.2d 797;People v. Colucci, 94 A.D.3d 1419, 1420, 942 N.Y.S.2d 395,lv. denied19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209).
Although the contention of defendant with respect to both appeals that his plea was not voluntarily entered survives his valid waiver of the right to appeal ( see Dunham, 83 A.D.3d at 1424, 919 N.Y.S.2d 258), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve that contention for our review ( see People v. Oldshield, 93 A.D.3d 1238, 1238, 939 N.Y.S.2d 920;Dunham, 83 A.D.3d at 1424, 919 N.Y.S.2d 258). Contrary to defendant's contention in each appeal, 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, 529 N.Y.S.2d 465, 525 N.E.2d 5. Finally, defendant contends in each appeal that the court erred in refusing to assign him new counsel without inquiring into the grounds for substitution. We note at the outset that defendant's contention is encompassed by his plea and his valid waiver of the right to appeal in each appeal except to the extent that it implicates the voluntariness of the plea ( see People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725,lv. denied19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768;People v. Phillips, 56 A.D.3d 1163, 1164, 867 N.Y.S.2d 324,lv. denied12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849). In any event, defendant abandoned his request for new counsel when he “decid[ed] ... to plead guilty while still being represented by the same attorney” ( People v. Hobart, 286 A.D.2d 916, 916, 731 N.Y.S.2d 127,lv. denied97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402;see Morris, 94 A.D.3d at 1451, 942 N.Y.S.2d 725;People v. Munzert, 92 A.D.3d 1291, 1292, 938 N.Y.S.2d 491).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.