Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Christopher BOSWELL, Sr., Defendant–Appellant. (Appeal No. 1.).
James S. Kernan, Public Defender, Lyons (Richard W. Youngman of Counsel), for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
James S. Kernan, Public Defender, Lyons (Richard W. Youngman of Counsel), for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05[3] ). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of promoting prison contraband in the first degree (§ 205.25[1] ). In appeal No. 3, defendant appeals from a judgment convicting him upon his plea of guilty of aggravated criminal contempt (§ 215.52[1] ). Defendant contends with respect to each appeal that he was denied effective assistance of counsel. That contention does not survive his guilty plea in any 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. Durodoye, 113 A.D.3d 1130, 1131, 977 N.Y.S.2d 640 [internal quotation marks omitted]; see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915). To the extent that defendant's contention involves matters outside the record on appeal, we note that it must be raised by way of a motion pursuant to CPL 440.10 ( see People v. Russell, 83 A.D.3d 1463, 1465, 919 N.Y.S.2d 721,lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103).
We reject defendant's further contention in each appeal that the court's failure to address his request for substitution of counsel requires reversal. In support of his request, defendant made only conclusory assertions that “did not ‘suggest a serious possibility of good cause for substitution’ ” ( People v. Thagard, 28 A.D.3d 1097, 1098, 813 N.Y.S.2d 836,lv. denied7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289;see People v. Hyson, 111 A.D.3d 1387, 1388, 974 N.Y.S.2d 852). In any event, defendant abandoned his request when he “ ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ ” ( People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438,lv. denied21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278;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. Munzert, 92 A.D.3d 1291, 1292–1293, 938 N.Y.S.2d 491).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.