People v. Adger

• Decision Date: 29 April 2011
• Citation: 2011 N.Y. Slip Op. 03479,921 N.Y.S.2d 436,83 A.D.3d 1590
• Parties: The PEOPLE of the State of New York, Respondent,v.Lamar O. ADGER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1590
921 N.Y.S.2d 436
2011 N.Y. Slip Op. 03479

The PEOPLE of the State of New York, Respondent,
v.
Lamar O. ADGER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2011.

[921 N.Y.S.2d 437]

Timothy P. Donaher, Public Defender, Rochester (William Pixley of Counsel), for Defendant–Appellant.Lamar O. Adger, Defendant–Appellant pro se.Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

[83 A.D.3d 1591] Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[3] ). We agree with defendant that his waiver of the right to appeal is invalid inasmuch as County Court's “single reference to [the] right to appeal is insufficient to establish that the court ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Brown, 296 A.D.2d 860, 745 N.Y.S.2d 368, lv. denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919; see

[921 N.Y.S.2d 438]

People v. Springstead, 57 A.D.3d 1397, 871 N.Y.S.2d 561, lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099; People v. Newman, 21 A.D.3d 1343, 801 N.Y.S.2d 649). Thus, defendant's contention that the court erred in refusing to suppress certain physical evidence on the ground that it was illegally seized is not encompassed by the invalid waiver of the right to appeal. That contention, however, is raised for the first time on appeal and thus is not preserved for our review ( see generally People v. Howard, 71 A.D.3d 1443, 897 N.Y.S.2d 665, lv. denied 15 N.Y.3d 751, 906 N.Y.S.2d 824, 933 N.E.2d 223; People v. Dumbleton, 67 A.D.3d 1451, 888 N.Y.S.2d 817, lv. denied 14 N.Y.3d 770, 898 N.Y.S.2d 102, 925 N.E.2d 107; People v. Buckman, 66 A.D.3d 1400, 1401, 886 N.Y.S.2d 271, lv. denied 13 N.Y.3d 937, 895 N.Y.S.2d 328, 922 N.E.2d 917), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15[6] [a] ). Even assuming, arguendo, that defendant's general challenge to the stop and subsequent search was sufficient to preserve his present contention that the seizure of certain physical evidence was unlawful, defendant correctly concedes that he abandoned that contention before the suppression court ( see generally People v. Anderson, 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656; People v. Smith, 13 A.D.3d 1121, 1122, 786 N.Y.S.2d 879, lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94).

We reject the contention of defendant in his pro se supplemental brief that the court failed to make an appropriate inquiry into his complaints concerning defense counsel and in response to his request for substitution of counsel. Defendant “did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]” ( People v. Randle [Appeal No. 2], 21 A.D.3d 1341, 1341, 801 N.Y.S.2d 188, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [internal quotation marks omitted]; see People v. Velasquez, 66 A.D.3d 1460, 885 N.Y.S.2d 694, lv. denied 13 N.Y.3d 938, 895 N.Y.S.2d 328, 922 N.E.2d 917, 13 N.Y.3d...