People v. Boyland

• Decision Date: 08 May 2015
• Docket Number: 613 KA 14-01742
• Parties: The PEOPLE of the State of New York, Respondent, v. Tobias BOYLAND, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1538

9 N.Y.S.3d 756

2015 N.Y. Slip Op. 04018

The PEOPLE of the State of New York, Respondent

v.Tobias BOYLAND, Defendant–Appellant.

613 KA 14-01742

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

May 8, 2015.

Anthony J. Lana, Buffalo, for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.

OpinionMEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of bail jumping in the second degree (Penal Law § 215.56 ), defendant contends that County Court erred in granting the People's motion to disqualify defense counsel, which the People made to prevent defense counsel from violating the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0 ] rule 3.7), and the unsworn witness rule (see generally People v. Paperno, 54 N.Y.2d 294, 300–301, 445 N.Y.S.2d 119, 429 N.E.2d 797 ). Contrary to defendant's contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 N.Y.2d at 299–300, 445 N.Y.S.2d 119, 429 N.E.2d 797 ; People v. Lawson, 65 A.D.3d 1380, 1380, 885 N.Y.S.2d 621, lv. denied 13 N.Y.3d 908, 895 N.Y.S.2d 322, 922 N.E.2d 911 ; People v. Swanson, 43 A.D.3d 1331, 1332, 844 N.Y.S.2d 521, lv. denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 ).

Finally, insofar as defendant contends that the People could not establish that he received proper notice to appear in court and surrender, we note that such contention is a challenge to the sufficiency of the evidence, and was therefore forfeited by his plea of guilty (see People v. Nichols, 37 A.D.3d 1097, 1098, 829 N.Y.S.2d 336, lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 559, 868 N.E.2d 242 ). Indeed, “it would be logically inconsistent to permit a defendant to enter a plea of guilty based on particular admitted facts, yet to allow that defendant ... to challenge on appeal the sufficiency of those facts to support a conviction, had there been a trial” (People v. Plunkett, 19 N.Y.3d 400, 405–406, 948 N.Y.S.2d 233, 971 N.E.2d 363 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.