        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

491
KA 12-01619
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER BOSWELL, SR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (RICHARD W. YOUNGMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered July 5, 2011. The judgment convicted defendant,
upon his plea of guilty, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of assault in the second degree
(Penal Law § 120.05 [3]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of promoting prison
contraband in the first degree (§ 205.25 [1]). In appeal No. 3,
defendant appeals from a judgment convicting him upon his plea of
guilty of aggravated criminal contempt (§ 215.52 [1]). Defendant
contends with respect to each appeal that he was denied effective
assistance of counsel. That contention does not survive his guilty
plea in any appeal inasmuch as “defendant failed to demonstrate that
the plea bargaining process was infected by [the] allegedly
ineffective assistance or that defendant entered the plea because of
[defense counsel’s] allegedly poor performance” (People v Durodoye,
113 AD3d 1130, 1131 [internal quotation marks omitted]; see People v
Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912). To the extent
that defendant’s contention involves matters outside the record on
appeal, we note that it must be raised by way of a motion pursuant to
CPL 440.10 (see People v Russell, 83 AD3d 1463, 1465, lv denied 17
NY3d 800).

     We reject defendant’s further contention in each appeal that the
court’s failure to address his request for substitution of counsel
requires reversal. In support of his request, defendant made only
conclusory assertions that “did not ‘suggest a serious possibility of
                                 -2-                           491
                                                         KA 12-01619

good cause for substitution’ ” (People v Thagard, 28 AD3d 1097, 1098,
lv denied 7 NY3d 795; see People v Hyson, 111 AD3d 1387, 1388). In
any event, defendant abandoned his request when he “ ‘decid[ed] . . .
to plead guilty while still being represented by the same attorney’ ”
(People v Guantero, 100 AD3d 1386, 1387, lv denied 21 NY3d 1004; see
People v Morris, 94 AD3d 1450, 1451, lv denied 19 NY3d 976; People v
Munzert, 92 AD3d 1291, 1292-1293).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
