Opinion
295 KA 14–00943
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Detroit A. KELLY, Defendant–Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). The record establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Smith, 153 A.D.3d 1129, 1130, 57 N.Y.S.3d 918 [4th Dept. 2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Tyler, 140 A.D.3d 1694, 1694, 31 N.Y.S.3d 916 [4th Dept. 2016], lv denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant's contention that he was denied effective assistance of counsel "does not survive his plea or the valid waiver of the right to appeal inasmuch as defendant failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance" ( People v. Brinson, 151 A.D.3d 1726, 1726, 55 N.Y.S.3d 564 [4th Dept. 2017], lv. denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] [internal quotation marks omitted]; see People v. Smith, 122 A.D.3d 1300, 1301, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] ). Defendant's further contention that County Court failed to make an appropriate inquiry into his request for substitution of counsel " ‘is encompassed by the plea and the waiver of the right to appeal except to the extent that the contention implicates the voluntariness of the plea’ " ( 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] ; see People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ). 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’ " ( Guantero, 100 A.D.3d at 1387, 953 N.Y.S.2d 438 ; see Morris, 94 A.D.3d at 1451, 942 N.Y.S.2d 725 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.