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

613
KA 14-01742
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

TOBIAS BOYLAND, DEFENDANT-APPELLANT.


ANTHONY J. LANA, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 13, 2012. The judgment convicted
defendant, upon his plea of guilty, of bail jumping in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of bail jumping in the second degree (Penal Law §
215.56), defendant contends that County Court erred in granting the
People’s motion to disqualify defense counsel, which the People made
to prevent defense counsel from violating the advocate-witness rule
(see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7), and
the unsworn witness rule (see generally People v Paperno, 54 NY2d 294,
300-301). Contrary to defendant’s contention, the court properly
discharged the attorney on the ground that his continued
representation of defendant would violate the advocate-witness rule
(see Paperno, 54 NY2d at 299-300; People v Lawson, 65 AD3d 1380, 1380,
lv denied 13 NY3d 908; People v Swanson, 43 AD3d 1331, 1332, lv denied
9 NY3d 1010).

     Finally, insofar as defendant contends that the People could not
establish that he received proper notice to appear in court and
surrender, we note that such contention is a challenge to the
sufficiency of the evidence, and was therefore forfeited by his plea
of guilty (see People v Nichols, 37 AD3d 1097, 1098, lv denied 8 NY3d
948). Indeed, “it would be logically inconsistent to permit a
defendant to enter a plea of guilty based on particular admitted
facts, yet to allow that defendant . . . to challenge on appeal the
sufficiency of those facts to support a conviction, had there been a
                                 -2-                           613
                                                         KA 14-01742

trial” (People v Plunkett, 19 NY3d 400, 405-406).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
