People v. Deal

• Decision Date: 26 March 2014
• Parties: The PEOPLE, etc., respondent, v. Derek DEAL, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 975
982 N.Y.S.2d 388
2014 N.Y. Slip Op. 02072

The PEOPLE, etc., respondent,
v.
Derek DEAL, appellant.

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

March 26, 2014.

Maureen Galvin Dwyer, Northport, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.), rendered September 30, 2011, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant did not validly waive his right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;

[982 N.Y.S.2d 389]

People v. Simmons, 107 A.D.3d 1020, 1021, 966 N.Y.S.2d 884). However, contrary to the defendant's contention, the County Court did not err in denying his motion to substitute counsel. Counsel may be substituted, at the trial court's discretion, where good cause is shown ( see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283;People v. Burkett, 98 A.D.3d 746, 950 N.Y.S.2d 194). In support of such a motion, the defendant must “make a specific factual allegation of a serious complaint about his current counsel” ( People v. Burkett, 98 A.D.3d at 748, 950 N.Y.S.2d 194;see People v. Porto, 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283). Here, the defendant made only a vague complaint about his dissatisfaction with the proceedings and, therefore, the court did not err in summarily denying the motion ( see People v. Porto, 16 N.Y.3d at 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283;People v. Robinson, 285 A.D.2d 478, 728 N.Y.S.2d 482).

The defendant failed to preserve for appellate review his claim that his plea of guilty was not knowingly, voluntarily, and intelligently entered ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Soria, 99 A.D.3d 1027, 952 N.Y.S.2d 300). Furthermore, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929;People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Soria, 99 A.D.3d at 1027, 952 N.Y.S.2d 300). In any event, a defendant is not entitled to vacatur of his plea of guilty “based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors” ( People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;see People v. Soria, 99 A.D.3d at 1027, 952 N.Y.S.2d 300;People v. Gibson, 95 A.D.3d 1033, 1033–1034, 944 N.Y.S.2d 237;People v. James, 192 A.D.2d 555, 556, 596 N.Y.S.2d 100).

The defendant's contention that he was deprived of the effective assistance of counsel as a consequence of his attorney's failure to make a motion to withdraw his plea based on certain post-plea statements appearing in the presentence investigation report is without merit. Counsel's failure to make a motion that had...