SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
510
KA 09-01639
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHARLES HAWKINS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 28, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the first
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 attempted robbery in the first degree
(Penal Law §§ 110.00, 160.15 [3]). We agree with defendant that his
“waiver of his right to appeal was invalid because [County Court]
conflated the appeal waiver with the rights automatically waived by
the guilty plea” (People v Martin, 88 AD3d 473, 474; see People v
Tate, 83 AD3d 1467, 1467; People v Daniels, 68 AD3d 1711, 1712, lv
denied 14 NY3d 887; see generally People v Moyette, 7 NY3d 892, 892-
893). Thus, contrary to the People’s contentions, defendant’s
remaining challenges are not encompassed by that waiver.
Defendant contends that, because he did not personally recite the
elements of the offense to which he pleaded guilty and gave
monosyllabic responses to the court’s questions during the plea
allocution, the plea colloquy does not sufficiently establish that he
understood the nature of the offense to which he was pleading guilty
and thus casts doubt upon the voluntariness of his plea. Those
contentions are actually addressed to the factual sufficiency of the
plea allocution, and defendant failed to preserve them for our review
by moving to withdraw the plea or to vacate the judgment of conviction
(see People v Lopez, 71 NY2d 662, 665; People v Jamison, 71 AD3d 1435,
1436, lv denied 14 NY3d 888; People v Bailey, 49 AD3d 1258, 1259, lv
denied 10 NY3d 932). This case does not fall within the narrow
exception to the preservation requirement set forth in Lopez (71 NY2d
-2- 510
KA 09-01639
at 666). In addition, “[d]efendant failed to preserve for our review
his further contention concerning the failure to comply with the
procedural requirements set forth in CPL 400.21” (People v Thompson,
83 AD3d 1535, 1536; see People v Pellegrino, 60 NY2d 636, 637; People
v Dorrah, 50 AD3d 1619, lv denied 11 NY3d 736). We decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant’s further contention, “there is no evidence
in the record indicating an abuse of discretion by the court in
denying the motion for substitution of counsel [where, as here, the]
defendant failed to proffer specific allegations of a ‘seemingly
serious request’ that would require the court to engage in a minimal
inquiry” (People v Porto, 16 NY3d 93, 100-101; see People v
Beriguette, 84 NY2d 978, 980, rearg denied 85 NY2d 924; People v
Sides, 75 NY2d 822, 824). With respect to defendant’s contention that
he received ineffective assistance of counsel, it is well settled
that, “[i]n the context of a guilty plea, a defendant has been
afforded meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404).
Here, “[t]o the extent that the contention of defendant survives his
plea[] of guilty” (People v McCoy, 21 AD3d 1275, 1276, lv denied 6
NY3d 756; see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851),
we conclude that defendant was afforded meaningful representation (see
generally Ford, 86 NY2d at 404). Finally, the sentence is not unduly
harsh or severe.
Entered: April 20, 2012 Frances E. Cafarell
Clerk of the Court