Opinion
819 KA 10-01489
06-19-2015
The PEOPLE of the State of New York, Respondent, v. James L. BLACKWELL, Defendant–Appellant.
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of forgery in the second degree (Penal Law § 170.10 [1 ] ). We agree with defendant that his purported waiver of the right to appeal is invalid. The waiver was not mentioned until after defendant pleaded guilty and, in any event, the record fails to establish that County Court engaged him in an adequate colloquy to ensure that the waiver was a knowing and voluntary choice (see People v. Frysinger, 111 A.D.3d 1397, 1398, 974 N.Y.S.2d 860 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Contrary to defendant's further contention, however, the invalidity of the waiver of the right to appeal does not undermine the voluntariness of his guilty plea (see generally People v. Gruber, 108 A.D.3d 877, 878, 969 N.Y.S.2d 586, lv. denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 ).
Defendant contends that the court lacked jurisdiction over him because he did not enter a formal plea to the indictment (see CPL 210.50 ). That contention is not preserved for our review (see People v. Miller, 27 A.D.3d 1017, 1017–1018, 811 N.Y.S.2d 500 ), and we conclude that it would not warrant reversal in any event given that the parties at all times “ proceeded ... as if defendant had entered a formal plea of not guilty” (People v. Rodabaugh, 26 A.D.3d 598, 600, 809 N.Y.S.2d 636 ).
We reject defendant's contention that the court abused its discretion in denying his request to substitute counsel. Even assuming, arguendo, that defendant's factual allegations were specific enough to give rise to a duty on the part of the court to consider the request (see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; cf. People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755, lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 ), we conclude that the court made the requisite “minimal inquiry” into defendant's objections concerning his attorney (People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Adger, 83 A.D.3d 1590, 1592, 921 N.Y.S.2d 436, lv. denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 ), and reasonably determined that defendant had not shown good cause for substitution (see People v. Linares, 2 N.Y.3d 507, 510–512, 780 N.Y.S.2d 529, 813 N.E.2d 609 ). “ ‘At most, defendant's allegations evinced disagreements with counsel over strategy ..., which were not sufficient grounds for substitution’ ” (People v. Bradford, 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ). In addition, the record does not establish that defendant made an unequivocal request to represent himself (see generally People v. Morgan, 72 A.D.3d 1482, 1482–1483, 901 N.Y.S.2d 773, lv. denied 15 N.Y.3d 854, 909 N.Y.S.2d 31, 935 N.E.2d 823 ). We conclude that the court did not abuse its discretion in refusing to entertain defendant's other pro se motions (see generally People v. Rodriguez, 95 N.Y.2d 497, 501–502, 719 N.Y.S.2d 208, 741 N.E.2d 882 ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. Defense counsel was not required to support defendant's various pro se motions (see People v. Adams, 66 A.D.3d 1355, 1356, 886 N.Y.S.2d 525, lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 ; see also People v. Jones, 261 A.D.2d 920, 920, 690 N.Y.S.2d 366, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103 ), and she did not take a position that was adverse to his interests merely by briefly defending her own performance in response to his request to substitute counsel (see People v. Fudge, 104 A.D.3d 1169, 1170, 960 N.Y.S.2d 792, lv. denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 ; see generally People v. Nelson, 7 N.Y.3d 883, 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 ). To the extent that defendant contends that counsel was ineffective because she “misrepresented the initial plea offer and his ability to participate in the judicial diversion program,” we conclude that such contention is based upon matters outside the record and thus may be raised only by way of a motion pursuant to CPL article 440 (see generally
People v. Ross, 118 A.D.3d 1413, 1416, 988 N.Y.S.2d 756, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 ; People v. Snitzel, 270 A.D.2d 836, 836–837, 705 N.Y.S.2d 541, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 173, 733 N.E.2d 245 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.