Opinion
1000 KA 15–01860
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Charles E. COLEMAN, II, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, 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 burglary in the first degree ( Penal Law § 140.30[4] ). We affirm.
Defendant contends that County Court failed to make an appropriate inquiry into his two requests for a substitution of counsel. Initially, we note that his contention " ‘is encompassed by the plea and the [valid] 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] ). Regardless, we conclude that "defendant abandoned his request for new counsel 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 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ; see People v. Barr, 169 A.D.3d 1427, 1427–1428, 92 N.Y.S.3d 803 [4th Dept. 2019], lv denied 33 N.Y.3d 1028, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ; People v. Kates, 162 A.D.3d 1627, 1629, 78 N.Y.S.3d 600 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ).
To the extent that defendant contends that he was denied effective assistance of counsel, that contention also does not survive the plea of guilty because defendant has not established that any deficiencies in defense counsel's performance infected the plea bargaining process or that defendant ultimately decided to enter the plea based on defense counsel's allegedly poor performance (see People v. Ware, 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; Morris, 94 A.D.3d at 1451, 942 N.Y.S.2d 725 ). We note that defense counsel secured for defendant a favorable plea deal (see People v. Booth, 158 A.D.3d 1253, 1255, 70 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] ), and that there is no reasonable probability that, "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" ( People v. Yates, 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] [internal quotation marks omitted] ).