Opinion
2014-02-13
The PEOPLE of the State of New York, Respondent, v. Jason L. MORGAN, Appellant.
Jack H. Weiner, Chatham, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Jack H. Weiner, Chatham, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 20, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of a three-count indictment and waived his right to appeal. Prior to sentencing, defendant moved pro se to withdraw his plea, arguing that his plea was not voluntary due to inadequate legal representation. County Court denied defendant's request and thereafter sentenced him, as agreed, to a prison term of 10 years to be followed by five years of postrelease supervision. Defendant appeals and we affirm.
While issues involving the voluntariness of defendant's plea survive his waiver of appeal ( see People v. Moses, 110 A.D.3d 1118, 972 N.Y.S.2d 363 [2013] ), the particular claim that defendant's plea was the product of undue pressure from County Court is unpreserved due to his failure to advance this claim on his motion to withdraw the plea ( see People v. Seuffert, 104 A.D.3d 1021, 1022, 960 N.Y.S.2d 738 [2013], lv. denied21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 [2013]; People v. Escalante, 16 A.D.3d 984, 985, 792 N.Y.S.2d 253 [2005], lvs. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669, 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005] ), and the narrow exception to the preservation requirement is inapplicable ( see People v. Hare, 110 A.D.3d 1117, 1117, 972 N.Y.S.2d 361 [2013]; People v. Seuffert, 104 A.D.3d at 1022, 960 N.Y.S.2d 738). In any event, were this claim properly before us we would find that defendant's plea was in all respects voluntary. With regard to defendant's claim of inadequate representation, which was preserved, the record reflects that counsel made appropriate pretrial motions, discussed the matter with defendant and negotiated an advantageous plea agreement on behalf of defendant. Accordingly, we conclude that defendant was afforded meaningful representation ( see People v. Carbone, 101 A.D.3d 1232, 1234, 956 N.Y.S.2d 221 [2012]; People v. Escalante, 16 A.D.3d at 985, 792 N.Y.S.2d 253). As such, we find no error in County Court's denial of defendant's pro se motion to withdraw his plea ( see People v. Carbone, 101 A.D.3d at 1234, 956 N.Y.S.2d 221; People v. Mitchell, 73 A.D.3d 1346, 1347, 901 N.Y.S.2d 405 [2010], lv. denied15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ).
Finally, inasmuch as counsel did not take a position that was adverse to defendant's motion to withdraw his plea, we are not persuaded that defendant was improperly denied his right to counsel by County Court's failure to assign new counsel to represent him in connection with such motion ( see People v. Pimentel, 108 A.D.3d 861, 862–863, 969 N.Y.S.2d 574 [2013], lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013]; compare People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013]; People v. Zaorski, 111 A.D.3d 1054, 976 N.Y.S.2d 581 [2013] ). We have considered defendant's remaining contentions and find them to be lacking in merit.
ORDERED that the judgment is affirmed. PETERS, P.J., ROSE and EGAN JR., JJ., concur.