Opinion
1080 KA 16–02182
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Miguel MARTINEZ, Defendant–Appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, 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 criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06 ). Initially, we agree with defendant that his purported waiver of the right to appeal is invalid inasmuch as "[t]he minimal inquiry made by County Court was insufficient to establish that the court engage[d] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Caufield, 126 A.D.3d 1542, 1542, 4 N.Y.S.3d 569 [4th Dept. 2015] [internal quotation marks omitted] ).
Defendant contends that the court erred in failing to assign him new counsel at sentencing. We reject that contention. "The record belies the contention of defendant that he requested new assigned counsel [at sentencing], and thus it cannot be said that the court erred in failing to conduct an inquiry to determine whether good cause was shown to substitute counsel" ( People v. Singletary, 63 A.D.3d 1654, 1655, 880 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009] ; see People v. Matthews, 142 A.D.3d 1354, 1355, 38 N.Y.S.3d 307 [4th Dept. 2016], lv denied 28 N.Y.3d 1125, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016] ; cf. People v. Dodson, 30 N.Y.3d 1041, 1042, 67 N.Y.S.3d 574, 89 N.E.3d 1254 [2017] ). In any event, even assuming, arguendo, that defendant's complaints concerning defense counsel "suggest[ed] a serious possibility of good cause for the substitution [of counsel] and thereby established a need for further inquiry" ( People v. Jones, 149 A.D.3d 1576, 1578, 52 N.Y.S.3d 804 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] [internal quotation marks omitted] ), we conclude that "the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit" ( People v. Bethany, 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert denied ––– U.S. ––––, 138 S. Ct. 1571, 200 L.Ed.2d 760 [2018] ; see People v. Porto, 16 N.Y.3d 93, 101–102, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; Singletary, 63 A.D.3d at 1654, 880 N.Y.S.2d 829 ).
Contrary to defendant's related contention, we conclude that "[defense] counsel's statement[s], in response to ... inquir[ies] from the court, that the sentence promise had been set forth clearly at the time of the plea[ and that defendant had previously been informed of his maximum sentencing exposure], [were] not ‘adversarial’ toward defendant ..., [inasmuch as defense] counsel was simply reiterating what was already a matter of record, which was the court's own recollection as well" ( People v. Benitez, 290 A.D.2d 363, 365, 737 N.Y.S.2d 68 [1st Dept. 2002], lv denied 98 N.Y.2d 673, 746 N.Y.S.2d 461, 774 N.E.2d 226 [2002]; see People v. Alvarez, 143 A.D.3d 543, 544, 39 N.Y.S.3d 434 [1st Dept. 2016], lv denied 28 N.Y.3d 1142, 52 N.Y.S.3d 294, 74 N.E.3d 679 [2017] ; People v. Burgos, 298 A.D.2d 190, 190, 748 N.Y.S.2d 49 [1st Dept. 2002], lv denied 99 N.Y.2d 580, 755 N.Y.S.2d 716, 785 N.E.2d 738 [2003] ).
To the extent that the complaints made by defendant at sentencing could be construed as a motion to withdraw his plea, we note that the court implicitly rejected any such motion when it determined that defendant's complaints were belied by the record (see People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ) and that the court made its determination before defense counsel made a separate comment regarding the voluntariness of the plea that was adverse to defendant (cf. People v. Mitchell, 21 N.Y.3d 964, 966–967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ), and we thus conclude that the record demonstrates that the court's rejection of any purported motion to withdraw the plea was not influenced by defense counsel's statements at sentencing (see People v. Holmes, 145 A.D.3d 641, 642, 42 N.Y.S.3d 811 [1st Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Carter–Doucette, 124 A.D.3d 1323, 1324, 998 N.Y.S.2d 269 [4th Dept. 2015], lv denied 25 N.Y.3d 988, 10 N.Y.S.3d 531, 32 N.E.3d 968 [2015] ; People v. Thaxton, 309 A.D.2d 1255, 1256, 765 N.Y.S.2d 809 [4th Dept. 2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ; Burgos, 298 A.D.2d at 190, 748 N.Y.S.2d 49 ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ). Finally, inasmuch as the uniform sentence and commitment form incorrectly reflects that defendant was sentenced as a second felony offender, it must be amended to reflect that he was actually sentenced as a second felony drug offender previously convicted of a violent felony offense (see People v. Oberdorf, 136 A.D.3d 1291, 1292–1293, 24 N.Y.S.3d 545 [4th Dept. 2016], lv. denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ).