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

112
KA 11-01860
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD D. ROSSBOROUGH, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

TERRENCE M. PARKER, DISTRICT ATTORNEY, BELMONT (AMANDA B. FINN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered September 20, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary 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 a plea
of guilty of burglary in the second degree (Penal Law § 140.25 [2]),
defendant contends that County Court erred in summarily denying his
motion to withdraw his plea and for the assignment of new counsel.
With respect to that part of defendant’s motion to withdraw his plea,
we note that a court need only afford a defendant a “reasonable
opportunity to present his contentions” (People v Tinsley, 35 NY2d
926, 927; see People v Allen, 99 AD3d 1252, 1252), and we conclude
that the court did so here. Further, with respect to the merits of
that part of defendant’s motion to withdraw his plea, his contention
that the plea was coerced by defense counsel is belied by his
statements during the plea colloquy that no one forced him to plead
guilty and that he was satisfied with the representation of defense
counsel (see People v Strasser, 83 AD3d 1411, 1411; People v Irvine,
42 AD3d 949, 949, lv denied 9 NY3d 962). Defendant failed to preserve
for our review his further contention that he was induced to enter his
plea by false representations concerning his minimum sentencing
exposure and the pendency of “bail jumping” charges against him (see
People v Alvarado, 82 AD3d 458, 458, lv denied 17 NY3d 791). In any
event, there was nothing coercive in any alleged misstatement of the
sentencing range by the court, and the record establishes that
defendant potentially faced “bail jumping” charges that were
ultimately encompassed by his plea (see People v Cerveira, 6 AD3d 294,
lv denied 3 NY3d 704).
                                 -2-                          112
                                                        KA 11-01860

     With respect to that part of defendant’s motion for the
assignment of new counsel, the record belies defendant’s contention
that defense counsel took a position adverse to that of defendant in
his pro se motion to withdraw the plea, and thus there was no reason
for the court to assign new counsel (see Allen, 99 AD3d at 1252-1253;
Strasser, 83 AD3d at 1411-1412). Indeed, defendant failed to
establish any conflict of interest or other irreconcilable conflict
with defense counsel (cf. People v Sides, 75 NY2d 822, 824-825).

     To the extent that defendant’s contention that he was denied
effective assistance of counsel based on defense counsel’s
participation in the factual component of the plea allocution survives
his guilty plea (see generally People v Neal, 56 AD3d 1211, 1211, lv
denied 12 NY3d 761), we reject that contention. The record
demonstrates that the factual component of the plea allocution was
performed under the court’s supervision and that defendant’s right to
counsel was adequately safeguarded (see People v Robbins, 33 AD3d
1127, 1128-1129). To the extent that defendant’s further contention
that he was denied effective assistance of counsel based on defense
counsel’s failure to show him the presentence report survives his
guilty plea (see generally Neal, 56 AD3d at 1211), we likewise
conclude that defendant’s contention lacks merit. Defendant was not
entitled to review the presentence report inasmuch as “the record
establishes that defendant was represented by counsel and that the
presentence report was reviewed by defense counsel” (People v June, 30
AD3d 1016, 1017, lv denied 7 NY3d 813, reconsideration denied 7 NY3d
868; see CPL 390.50 [2] [a]; see generally People v Vaughan, 20 AD3d
940, 942, lv denied 5 NY3d 857), and thus it cannot be said that there
was no legitimate explanation for defense counsel’s alleged deficiency
in failing to show it to him (see generally People v Rivera, 71 NY2d
705, 709).

     Inasmuch as the local criminal court issued a divestiture order
and defendant was held over for grand jury action and executed a
waiver of indictment and consent to be prosecuted by a superior court
information, we conclude that defendant’s further contention that the
court had no jurisdiction is without merit (see People v Barber, 280
AD2d 691, 692, lv denied 96 NY2d 825; People v Talham, 41 AD2d 354,
356). Finally, defendant’s contention that he was denied the right to
counsel when he waived a preliminary hearing before he was assigned
counsel is without merit (see People v Kelone, 292 AD2d 640, 641, lv
denied 98 NY2d 677).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
