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

1354
KA 14-00788
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL HECKERMAN, DEFENDANT-APPELLANT.


SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL HECKERMAN, DEFENDANT-APPELLANT PRO SE.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered January 28, 2014. The judgment convicted
defendant, upon his plea of guilty, of promoting prison contraband 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 promoting prison contraband in the first
degree (Penal Law § 205.25 [2]). We reject defendant’s contention
that he was denied effective assistance of counsel on his motion to
withdraw his guilty plea, and that County Court should have assigned
new counsel before addressing the motion (see generally People v
Mitchell, 21 NY3d 964, 966-967). We conclude based on the record
before us that defense counsel never took a position adverse to
defendant’s interests or in opposition to the motion (cf. id. at 967).
Indeed, we note that defendant never sought new counsel on the motion
but, rather, he contends for the first time on appeal that he was
entitled to new counsel because his lawyer might have taken a position
that was adverse to his interests (see generally People v Porto, 16
NY3d 93, 100-101). Under such circumstances, we perceive no error by
the court.

     Defendant’s contention in his pro se supplemental brief that he
“was coerced [into accepting the plea is] belied by his statements
during the plea colloquy” in which he stated that he had not been
pressured or coerced (People v Farley, 34 AD3d 1229, 1230, lv denied 8
NY3d 880; see People v Garner, 86 AD3d 955, 955).
                                 -2-                          1354
                                                         KA 14-00788

     Defendant contends in his pro se supplemental brief that the
indictment is defective because the item he possessed, i.e., a padlock
tied to a shoelace, is not “dangerous contraband” (Penal Law § 205.00
[4]; see § 205.25 [2]). Inasmuch as defendant’s contention concerns
an alleged nonjurisdictional defect, it was forfeited by his guilty
plea (see generally People v Konieczny, 2 NY3d 569, 572; People v
Hansen, 95 NY2d 227, 231-232). Defendant’s further contention in his
pro se supplemental brief challenging the evidence supporting the
indictment was also forfeited by his guilty plea. “While
[defendant’s] constitutional right to be prosecuted on a
jurisdictionally valid indictment survived the guilty plea, his right
to challenge [the] evidence did not” (Hansen, 95 NY2d at 232).

     We have reviewed defendant’s remaining contention in his pro se
supplemental brief and conclude that it is without merit.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
