| People v McBride |
| 2017 NY Slip Op 05170 |
| Decided on June 22, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 22, 2017
Sweeny, J.P., Mazzarelli, Andrias, Moskowitz, Gische, JJ.
4356 2475/14
v
Kyle McBride, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered May 1, 2015, as amended June 9, 2015, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, aggravated family offense, and assault in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of five years, unanimously modified, on the law, to the extent of vacating the sentence for the aggravated family offense conviction and remanding to Supreme Court for resentencing on that conviction, and otherwise affirmed.
Defendant made a valid waiver of his right to appeal (see People v Bryant, 28 NY3d 1094 [2016]), which forecloses review of
his claim that the court improperly denied his request for new
counsel (see People v Doyle, 82 AD3d 564 [1st Dept 2011], lv denied 17 NY3d 805 [2011]).
Regardless of whether defendant made a valid waiver of his right to appeal, we find that the court providently exercised its discretion in denying defendant's application for reassignment of counsel. At the plea proceeding, defendant failed to make specific factual allegations of genuinely serious complaints that would trigger the court's obligation to inquire further (see People v Porto, 16 NY3d 93, 100-101 [2010]). Furthermore, the court made reference to recent prior inquiries into defendant's complaints about the same attorney, and it declined to revisit the issue.
The parties agree that defendant should be resentenced on his aggravated family offense conviction because he was absent when, in order to correct an illegality, the court changed the minimum term from 1 year to 1½ years.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 22, 2017
CLERK