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

532
KA 10-02124
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALLEN MORRIS, DEFENDANT-APPELLANT.


MATTHEW E. BROOKS, LOCKPORT, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered October 4, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third 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 criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). Defendant
contends that County Court abused its discretion in denying his motion
to withdraw the guilty plea on the ground that he was misinformed with
respect to the negotiated sentence to be imposed. Although
defendant’s contention survives his waiver of the right to appeal (see
People v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746), we
conclude that it is without merit. “ ‘Permission to withdraw a guilty
plea rests solely within the court’s discretion . . . , and refusal to
permit withdrawal does not constitute an abuse of that discretion
unless there is some evidence of innocence, fraud, or mistake in
inducing the plea’ ” (People v Pillich, 48 AD3d 1061, lv denied 11
NY3d 793; see People v Alexander, 97 NY2d 482, 485). There is no such
evidence here. Rather, the record establishes that the court properly
informed defendant that the negotiated sentence was required to run
consecutively to the prior undischarged sentence that defendant was
serving at that time, and that any jail time credit to be applied
would be determined by the Department of Correctional Services (see §
70.25 [2-a]; § 70.30 [3]; Correction Law § 600-a; cf. People v Lee, 64
AD3d 1236, 1237; People v Ingoglia, 305 AD2d 1002, 1003, lv denied 100
NY2d 583).

     Defendant further contends that the court failed to make an
appropriate inquiry into his two requests for substitution of counsel.
The initial request for new assigned counsel was set forth in a brief
                                 -2-                           532
                                                         KA 10-02124

notation in defense counsel’s “status report” to the court indicating
that defendant did not wish to accept the plea offer made during a
pretrial conference. No reasons were provided for defendant’s
request, and defendant did not repeat that request or raise any
complaints concerning defense counsel’s representation at subsequent
appearances before the court. Defendant’s contention with respect to
his initial request for substitution of counsel “is encompassed by the
plea and the waiver of the right to appeal except to the extent that
the contention implicates the voluntariness of the plea” (People v
Phillips, 56 AD3d 1163, 1164, lv denied 12 NY3d 761; see People v
Williams, 6 AD3d 746, 747, lv denied 3 NY3d 650). In any event,
defendant abandoned that request when he “decid[ed] . . . to plead
guilty while still being represented by the same attorney” (People v
Hobart, 286 AD2d 916, 916, lv denied 97 NY2d 683; see People v
Munzert, 92 AD3d 1291, 1292; People v Ocasio, 81 AD3d 1469, 1470, lv
denied 16 NY3d 898, cert denied ___ US ___, 132 S Ct 318).

      Defendant made a second request for substitution of counsel at
sentencing. To the extent that defendant’s contention with respect to
the second request implicates the voluntariness of the plea and thus
survives the plea and the waiver of the right to appeal, we conclude
that the court made a sufficient inquiry into that request (see
generally People v Porto, 16 NY3d 93, 99-100). “ ‘[T]he court
afforded defendant the opportunity to express his objections
concerning [defense counsel], and the court thereafter reasonably
concluded that defendant’s . . . objections had no merit or
substance’ ” (People v Adger, 83 AD3d 1590, 1592, lv denied 17 NY3d
857).

      The contention of defendant that he was denied effective
assistance of counsel does not survive either the plea of guilty or
the waiver of the right to appeal inasmuch as defendant made “no
showing 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
Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation
marks omitted]; see generally People v Nieves, 299 AD2d 888, 889, lv
denied 99 NY2d 631). Defendant’s further contention that the court
erred in denying that part of his omnibus motion seeking to dismiss
the indictment also “does not survive his valid waiver of the right to
appeal . . ., nor in any event does it survive his guilty plea”
(People v Baker, 49 AD3d 1293, lv denied 10 NY3d 932; see People v
Crumpler, 70 AD3d 1396, 1397, lv denied 14 NY3d 839). Finally,
defendant’s contention with respect to his motion to vacate the
judgment and to set aside the sentence pursuant to CPL 440.10 and
440.20 is “not properly before us on appeal from the judgment of
conviction” (People v Moore, 81 AD3d 1325, 1325, lv denied 16 NY3d
897).



Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
