SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
819
KA 10-01489
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES L. BLACKWELL, DEFENDANT-APPELLANT.
LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered June 10, 2010. The judgment convicted
defendant, upon his plea of guilty, of forgery in the second degree.
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 forgery in the second degree (Penal Law §
170.10 [1]). We agree with defendant that his purported waiver of the
right to appeal is invalid. The waiver was not mentioned until after
defendant pleaded guilty and, in any event, the record fails to
establish that County Court engaged him in an adequate colloquy to
ensure that the waiver was a knowing and voluntary choice (see People
v Frysinger, 111 AD3d 1397, 1398; see generally People v Bradshaw, 18
NY3d 257, 264-267). Contrary to defendant’s further contention,
however, the invalidity of the waiver of the right to appeal does not
undermine the voluntariness of his guilty plea (see generally People v
Gruber, 108 AD3d 877, 878, lv denied 22 NY3d 956).
Defendant contends that the court lacked jurisdiction over him
because he did not enter a formal plea to the indictment (see CPL
210.50). That contention is not preserved for our review (see People
v Miller, 27 AD3d 1017, 1017-1018), and we conclude that it would not
warrant reversal in any event given that the parties at all times
“proceeded . . . as if defendant had entered a formal plea of not
guilty” (People v Rodabaugh, 26 AD3d 598, 600).
We reject defendant’s contention that the court abused its
discretion in denying his request to substitute counsel. Even
assuming, arguendo, that defendant’s factual allegations were specific
enough to give rise to a duty on the part of the court to consider the
-2- 819
KA 10-01489
request (see People v Porto, 16 NY3d 93, 99-100; cf. People v Lewicki,
118 AD3d 1328, 1329, lv denied 23 NY3d 1064), we conclude that the
court made the requisite “minimal inquiry” into defendant’s objections
concerning his attorney (People v Sides, 75 NY2d 822, 825; see People
v Adger, 83 AD3d 1590, 1592, lv denied 17 NY3d 857), and reasonably
determined that defendant had not shown good cause for substitution
(see People v Linares, 2 NY3d 507, 510-512). “ ‘At most, defendant’s
allegations evinced disagreements with counsel over strategy . . . ,
which were not sufficient grounds for substitution’ ” (People v
Bradford, 118 AD3d 1254, 1255, lv denied 24 NY3d 1082). In addition,
the record does not establish that defendant made an unequivocal
request to represent himself (see generally People v Morgan, 72 AD3d
1482, 1482-1483, lv denied 15 NY3d 854). We conclude that the court
did not abuse its discretion in refusing to entertain defendant’s
other pro se motions (see generally People v Rodriguez, 95 NY2d 497,
501-502).
Finally, we reject defendant’s contention that he was denied
effective assistance of counsel. Defense counsel was not required to
support defendant’s various pro se motions (see People v Adams, 66
AD3d 1355, 1356, lv denied 13 NY3d 858; see also People v Jones, 261
AD2d 920, 920, lv denied 93 NY2d 972), and she did not take a position
that was adverse to his interests merely by briefly defending her own
performance in response to his request to substitute counsel (see
People v Fudge, 104 AD3d 1169, 1170, lv denied 21 NY3d 1042; see
generally People v Nelson, 7 NY3d 883, 884). To the extent that
defendant contends that counsel was ineffective because she
“misrepresented the initial plea offer and his ability to participate
in the judicial diversion program,” we conclude that such contention
is based upon matters outside the record and thus may be raised only
by way of a motion pursuant to CPL article 440 (see generally People v
Ross, 118 AD3d 1413, 1416, lv denied 24 NY3d 964; People v Snitzel,
270 AD2d 836, 836-837, lv denied 95 NY2d 804).
Entered: June 19, 2015 Frances E. Cafarell
Clerk of the Court