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

555
KA 12-01168
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN LEWICKI, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 12, 2012. The judgment
convicted defendant, upon his plea of guilty, of murder 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 murder in the second degree
(Penal Law § 125.25 [1]) and, in appeal No. 2, he appeals from a
judgment convicting him upon his plea of guilty of burglary in the
third degree (§ 140.20).

     In both appeals, defendant contends that Supreme Court failed to
make a sufficient inquiry into his request for new counsel. We note
at the outset that, to the extent that defendant challenges the
court’s failure to assign him new counsel prior to the plea, that
contention is “encompassed by his plea and his valid waiver of the
right to appeal in each appeal except to the extent that it implicates
the voluntariness of the plea” (People v Guantero, 100 AD3d 1386,
1387, lv denied 21 NY3d 1004). In any event, although defendant made
vague, conclusory assertions that there was a “lack of representation”
with respect to his case and that defense counsel had not visited him
in jail as promised mere days before the scheduled trial on the murder
charge, the record establishes that defendant did not express any
further concerns with defense counsel before pleading guilty, and he
confirmed during the plea colloquy that he was satisfied with his
attorney’s representation. Defendant therefore “abandoned his request
for new counsel when he ‘decid[ed] . . . to plead guilty while still
being represented by the same attorney’ ” (id.).
                                 -2-                           555
                                                         KA 12-01168

     With respect to defendant’s post-plea request for substitution of
counsel, we conclude that defendant “failed to proffer specific
allegations of a ‘seemingly serious request’ that would require the
court to engage in a minimal inquiry” (People v Porto, 16 NY3d 93,
100; see People v Wilson, 112 AD3d 1317, 1318; People v Davis, 99 AD3d
1228, 1229, lv denied 20 NY3d 1010). Defendant’s “form motion did not
contain any specific factual allegations that would indicate a serious
conflict with counsel” (Porto, 16 NY3d at 100-101), but rather it
contained only general assertions of dissatisfaction with defense
counsel’s representation (see People v Hopkins, 67 AD3d 471, 471, lv
denied 14 NY3d 771; see generally People v Sides, 75 NY2d 822, 824).
Defendant’s further allegations that defense counsel “lied” to him and
talked him into pleading guilty are belied by the record (see People v
Carter, 304 AD2d 771, 771-772).

     Contrary to the further contention of defendant in each appeal,
we conclude that the court did not abuse its discretion in denying his
motion to set aside his guilty pleas. “The determination whether to
permit a defendant to withdraw a guilty plea rests within the sound
discretion of the court” (People v Said, 105 AD3d 1392, 1393, lv
denied 21 NY3d 1019), and “a court does not abuse its discretion in
denying a motion to withdraw a guilty plea where the defendant’s
allegations in support of the motion are belied by the defendant’s
statements during the plea proceeding” (People v Williams, 103 AD3d
1128, 1128, lv denied 21 NY3d 915). Here, defendant’s claim that
defense counsel “told” him to plead guilty is belied by defendant’s
statements during the plea colloquy that he was satisfied with the
representation of defense counsel, that he had sufficient time to
consider the plea, that no one had forced him to plead guilty, and
that he was entering the plea voluntarily (see People v Rossborough,
105 AD3d 1332, 1333, lv denied 21 NY3d 1045; People v Ivey, 98 AD3d
1230, 1231, lv dismissed 20 NY3d 1012; People v Garner, 86 AD3d 955,
955-956). Contrary to the further assertions of defendant, there is
no indication in the plea proceeding that he was confused by the plea
offers, that he did not understand the terms of the plea offers or the
consequences of pleading guilty, or that he was suffering from extreme
emotional distress. Both the prosecutor and the court reviewed the
terms of the plea offers in detail, and defendant repeatedly confirmed
that he understood. Moreover, defendant’s “conclusory and
unsubstantiated claim of innocence is belied by his admissions during
the plea colloquy” (Garner, 86 AD3d at 955; see Williams, 103 AD3d at
1129).

     We reject the contention of defendant that his waiver of the
right to appeal is ineffective with respect to the severity of the
sentence imposed in each appeal. The court made clear to defendant
that his waiver of the right to appeal would encompass any challenge
to the severity of the sentence, and defendant confirmed that he
understood (see generally People v Maracle, 19 NY3d 925, 927-928). We
note in any event that the sentence in each appeal is not unduly harsh
or severe in light of the brutal nature of the crime and defendant’s
                           -3-                  555
                                          KA 12-01168

utter lack of remorse.




Entered:   June 13, 2014         Frances E. Cafarell
                                 Clerk of the Court
