Opinion
899 KA 13-00584.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Allen FARMER, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10[1] ), defendant contends that his plea was not knowingly, voluntarily, and intelligently entered. We note at the outset that we agree with defendant that his waiver of the right to appeal was invalid because, inter alia, County Court “improperly conflate[d] the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 ; see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Campbell, 62 A.D.3d 1265, 1266, 878 N.Y.S.2d 537, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 ). Nevertheless, “[a]lthough defendant's contention that the plea was not knowingly, voluntarily, and intelligently entered thus is not precluded by the invalid waiver, he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction” (People v. Jones, 118 A.D.3d 1354, 1354, 987 N.Y.S.2d 749, lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 221 ; see People v. Wilson, 117 A.D.3d 1476, 1477, 984 N.Y.S.2d 725 ). Defendant likewise failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), and this case does not fall within the rare exception to the preservation rule (see id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In addition, defendant failed to preserve for our review his contention that the court erred in failing to assign him new counsel inasmuch as defendant informed the court that he was attempting to retain new counsel but never sought substitution of his assigned counsel (see CPL 470.05[2] ). In any event, defendant failed to show good cause for substitution of his assigned attorney inasmuch as his objections to his assigned counsel were vague and unsubstantiated (see People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; see also People v. Santiago, 111 A.D.3d 1383, 1384, 975 N.Y.S.2d 291, lv. denied 23 N.Y.3d 1025, 992 N.Y.S.2d 807, 16 N.E.3d 1287 ).
Finally, although defendant's invalid waiver of the right to appeal does not encompass his challenge to the severity of his sentence (see e.g. People v. Davis, 114 A.D.3d 1166, 1167, 979 N.Y.S.2d 903, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249 ; People v. Williams, 46 A.D.3d 1424, 1425, 848 N.Y.S.2d 795 ), we reject that challenge.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.