Opinion
KA 02-01967.
November 21, 2003.
Appeal from a judgment of Wayne County Court (Kehoe, J.), entered April 23, 2002, convicting defendant upon his plea of guilty of criminal sale of a controlled substance in the third degree and assault in the second degree.
Ronald C. Valentine, Public Defender, Lyons (John E. Tyo of Counsel), for Defendant-Appellant.
Richard Healy, District Attorney, Lyons (Melvin Bressler of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and assault in the second degree (§ 120.05 [3]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea allocution is factually insufficient ( see People v. Lopez, 71 N.Y.2d 662, 665). We conclude that the plea allocution does not "cast significant doubt upon the defendant's guilt or otherwise call into question the voluntariness of the plea" and thus defendant's contention does not fall within the rare case exception to the preservation doctrine ( id. at 666). Defendant's further contentions concerning the legal and facial insufficiency of the arrest warrant are nonjurisdictional in nature and thus were forfeited by operation of law upon entry of the guilty plea ( see People v. Keizer, 100 N.Y.2d 114, 122-123; People v. Hansen, 95 N.Y.2d 227, 230-231). Although the contention of defendant that he was denied his constitutional right to a speedy trial survives the guilty plea, defendant raises that contention for the first time on appeal and therefore failed to preserve it for our review ( see People v. Weeks, 272 A.D.2d 983, lv denied 95 N.Y.2d 872; see also People v. Johnson, 305 A.D.2d 1097; People v. Blackshear, 275 A.D.2d 966, 967, lv denied 96 N.Y.2d 756, 916). In any event, that contention is without merit.
We reject the contention of defendant that County Court erred in denying his request for new counsel based on defense counsel's alleged conflict of interest. We conclude that the court properly explored the potential conflict of interest and determined that defendant failed to establish that "`the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation'" ( People v. Abar, 99 N.Y.2d 406, 409). The sentence is neither unduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it is without merit.