                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   107498
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBERT TOLEDO,
                    Appellant.
________________________________


Calendar Date:   October 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Thomas F. Garner, Middleburgh, for appellant, and appellant
pro se.

      James E. Conboy, District Attorney, Fonda (Sarah J.
Leszczynski of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Montgomery
County (Catena, J.), rendered October 27, 2014, convicting
defendant upon his plea of guilty of the crime of criminal sale
of a controlled substance in the third degree.

      In satisfaction of a four-count indictment, defendant
pleaded guilty to criminal sale of a controlled substance in the
third degree, admitting that he sold heroin in exchange for cash.
Pursuant to the plea agreement, defendant waived his right to
appeal and was sentenced, as a second felony drug offender, to a
prison term of eight years with three years of postrelease
supervision. Defendant now appeals.
                              -2-                107498

      We affirm. Initially, contrary to defendant's contentions,
his combined oral and written waiver of appeal was knowing,
voluntary and intelligent (see People v Sanders, 25 NY3d 337,
339-341 [2016]; People v Lopez, 6 NY3d 248, 256 [2009]; cf.
People v Bradshaw, 18 NY3d 257, 265 [2011]). The record reflects
that defendant was advised that an appeal waiver was a condition
of the plea deal, was informed that he ordinarily retained the
right to appeal his conviction and sentence "to a higher court"
but that the People were requiring that he give up that right
and, after conferring with counsel throughout the colloquy,
defendant accepted this condition of the plea. The record belies
his claim that County Court intimated that the waiver was an
automatic consequence of his guilty plea, as the court completed
its discussion of the trial-related rights automatically
forfeited by the plea and then separately addressed the waiver of
appeal, while specifying that it was a condition of the People's
offer, without lumping it with the trial rights (see People v
Lopez, 6 NY3d at 256-257; People v Forget, 136 AD3d 1115, 1116
[2016], lv denied 28 NY3d 929 [2016]). Defendant then executed a
written waiver after reviewing it with counsel that made clear
that the waiver of appeal was separate and distinct from the
rights automatically forfeited by his plea and reflected
defendant's understanding of the waiver (see People v Lopez, 6
NY3d at 256). Given the valid appeal waiver, defendant is
precluded from challenging the negotiated sentence as harsh and
excessive (see id. at 255-256).

      While defendant's challenge to the voluntariness of his
plea survives his appeal waiver, it is unpreserved for our review
in the absence of an appropriate postallocution motion (see CPL
220.60 [2]; People v Williams, 27 NY3d 212, 214, 219-222 [2016];
People v Blair, 136 AD3d 1105, 1006 [2016], lvs denied 27 NY3d
1066, 1072 [2016]), and he did not make any statement during the
plea allocution that triggered the narrow exception to the
preservation requirement (see People v Lopez, 71 NY2d 662, 666-
667 [1988]). Defendant's claim that County Court failed to
adequately advise him of his constitutional, trial-related Boykin
rights (see Boykin v Alabama, 395 US 238, 243 [1969]) that he was
forfeiting by his plea was not preserved despite an opportunity
to do so; moreover, the record reflects that he was fully advised
and understood the waiver of his trial rights (see People v
                              -3-                107498

Conceicao, 26 NY3d 375, 379, 381-384 [2015]). Further, it was
not necessary, as he now contends, that he personally recite the
elements of the crime, as his affirmative responses to the
court's questions were sufficient (see People v Griffith, 136
AD3d 1114, 1115 [2016]).

      To the extent that defendant's ineffective assistance of
counsel claims implicate the voluntariness of his plea, they
survive his appeal waiver, but they are also not properly before
us because he never moved to withdraw his plea on this ground
(see People v Islam, 134 AD3d 1348, 1349 [2015]).1 While
defendant had unsuccessfully requested the assignment of a new
attorney in an earlier proceeding at which he rejected an initial
plea offer, he chose at the next appearance to proceed with the
plea and did not thereafter move to withdraw his plea. Moreover,
defendant failed to articulate good cause to replace assigned
counsel, such as a conflict of interest or irreconcilable
differences, and we discern no abuse of discretion in County
Court's denial of this request (see People v Smith, 18 NY3d 588,
592-593 [2012]; People v Khan, 139 AD3d 1261, 1264 [2016], lvs
denied 28 NY3d 932, 934 [2016]). In that regard, defendant's
generalized complaint that counsel had not spent sufficient time
with him did not establish good cause for substitution or compel
further inquiry under these circumstances (see People v Mitchell,
129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
Contrary to his argument, defense counsel did not take a position
that was adverse to him or oppose substitution of counsel so as
to give rise to a conflict of interest (see People v Mitchell, 21
NY3d 964, 967 [2013]; People v Tyler, 130 AD3d 1383, 1385
[2015]). Rather, when the court inquired, counsel properly
recounted the steps he and his associate counsel had taken in
representing defendant, which was in response to defendant's
request (see id.; see also People v Washington, 25 NY3d 1091,
1095 [2015]; People v Nelson, 7 NY3d 883, 884 [2006]). Thus,


     1
         To the extent that defendant's pro se claims in part
concern matters that are outside the record on appeal, they are
more appropriately addressed in a motion to vacate pursuant to
CPL article 440 (see People v Clark, 135 AD3d 1239, 1241 [2016],
lv denied 27 NY3d 995 [2016]).
                              -4-                  107498

were we to address these issues, we would find that defendant
received meaningful representation.2 Defendant's remaining
claims, including those properly raised in his pro se brief, have
been reviewed and determined to lack merit.

     Garry, Lynch, Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




     2
         Defendant's argument that counsel was ineffective for
failing to raise statutory and constitutional speedy trial claims
is unpreserved for our review as it was not raised in County
Court. Moreover, his statutory speedy trial claim does not
implicate the voluntariness of his plea and therefore does not
survive his appeal waiver, and it was forfeited by his guilty
plea (see People v Archie, 116 AD3d 1165, 1165 [2014]; People v
Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104
[2013]; People v Speranza, 96 AD3d 1164, 1165 [2012]).
