People v. Clemons

• Decision Date: 28 January 2022
• Docket Number: 1105,KA 19-01903
• Citation: 201 A.D.3d 1355,158 N.Y.S.3d 690 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Napoleon CLEMONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1355
158 N.Y.S.3d 690 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Napoleon CLEMONS, Defendant-Appellant.

1105
KA 19-01903

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

Entered: January 28, 2022

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.

158 N.Y.S.3d 691

MEMORANDUM AND ORDER

201 A.D.3d 1355

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon (CPW) in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court failed to make the requisite minimal inquiry into his serious request to substitute counsel. Even assuming, arguendo, that defendant's contention "is not foreclosed by his guilty plea because it ‘implicates the voluntariness of the plea’ " ( People v. Jeffords , 185 A.D.3d 1417, 1418, 128 N.Y.S.3d 112 [4th Dept. 2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 303, 155 N.E.3d 796 [2020] ), we conclude that "defendant abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " ( People v. Guantero , 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013]; see Jeffords , 185 A.D.3d at 1418, 128 N.Y.S.3d 112 ; cf. People v. Morris , 183 A.D.3d 1254, 1254-1255, 123 N.Y.S.3d 784 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 838, 151 N.E.3d 519 [2020] ).

Defendant further contends that the plea was not knowingly, voluntarily, and intelligently entered because the court neglected to ask him if the firearm in question was loaded, which is an element of CPW in the second degree as...