Opinion
April 30, 1990
Appeal from the County Court, Suffolk County (Cacciabaudo, J.).
Ordered that the judgment is affirmed.
The defendant contends that he was denied his right to counsel when a witness, a police officer who had encountered the defendant just a few nights earlier, made an identification of the defendant at a lineup. However, the uncontradicted testimony showed that defense counsel was present during the setting up and viewing of the lineup. Moreover, it was also uncontradicted that counsel failed to register any objections or to offer any suggestions as to the manner in which the lineup was conducted, despite having been repeatedly asked by the police if he had any comments. Under such circumstances, the hearing court did not err in denying the motion to suppress the lineup identification on these grounds (see, People v. Lopez, 123 A.D.2d 360; see also, People v. Foulks, 143 A.D.2d 1038; People v. Kreutz, 110 A.D.2d 912; cf., People v. Drummond, 134 A.D.2d 276).
The defendant also contends that the court erred in summarily denying that branch of the pretrial motion which sought to suppress the tape recording of a telephone call made by a third person to the defendant. However, it is well established, both under New York and Federal law, that eavesdropping evidence obtained without a warrant is admissible where one of the parties to the telephone conversation has consented to the eavesdropping (see, People v. Lasher, 58 N.Y.2d 962; People v. McGee, 49 N.Y.2d 48; People v. Tabora, 139 A.D.2d 540; United States v. Bonanno, 487 F.2d 654). Here, the defendant failed to present any factual matter which would tend to support his claim that the caller's consent had been coerced. The letter from the caller relied upon by the defendant contains no reference to the telephone conversation and cannot be read or interpreted as implying that the caller was coerced into consenting to the taping of the phone call. Accordingly, the court properly denied that portion of the defendant's motion which was to suppress the eavesdropping evidence without holding a hearing (see, CPL 710.60, [3] [b]; 710.20 [2], [3]).
Furthermore, the sentencing court did not err in denying the defendant's pro se motion to withdraw his guilty plea. "In the absence of anything in the record to suggest that the defendant's plea was either improvident or baseless", a subsequent bare assertion of innocence or that the defendant was ill-advised will be insufficient to warrant withdrawal of the plea (People v Suba, 130 A.D.2d 526, 527; People v. Florian, 145 A.D.2d 645), especially where, as here, the court had the defendant's written request before it and provided the defendant with an opportunity to state his reasons for the request. "If defendant was dissatisfied with the terms of the proffered pleas his remedy was to refrain from pleading guilty" (People v. De Simone, 112 A.D.2d 443, 444).
The defendant's claim, first raised on appeal, that his guilty plea was induced by the court conducting a voir dire of potential jurors in his absence is not properly before us. "Having failed to move to withdraw his plea on that basis, the defendant waived his right to review thereof" (People v. Williams, 156 A.D.2d 497). Moreover, to the extent that the defendant's claim is based upon facts which are dehors the record, his proper remedy is to move to vacate the judgment under CPL 440.10 (see, People v. Ortiz, 143 A.D.2d 150).
Under the circumstances of this case, where the record clearly indicates no basis for allowing the withdrawal of the plea, or even holding a hearing thereon, defense counsel's failure to join in the defendant's pro se motion to withdraw his plea did not constitute ineffective assistance of counsel (see, People v Glasper, 151 A.D.2d 692; People v. Doherty, 134 A.D.2d 513; see also, People v. Lynch, 156 A.D.2d 884; People v. Croskery, 139 A.D.2d 970; cf., People v. Santana, 156 A.D.2d 736).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Brown, Lawrence and Balletta, JJ., concur.