People v. Flynn

• Decision Date: 23 February 2012
• Citation: 2012 N.Y. Slip Op. 01387,92 A.D.3d 1148,939 N.Y.S.2d 166
• Parties: The PEOPLE of the State of New York, Respondent, v. Bruce FLYNN, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01387

92 A.D.3d 1148

939 N.Y.S.2d 166

The PEOPLE of the State of New York, Respondent,

v.Bruce FLYNN, Appellant.

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

Feb. 23, 2012.

Alexander Lesyk, Norwood, for appellant, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

MALONE JR., J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered March 24, 2010, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and criminal use of a firearm in the second degree.

In October 2009, in relation to an incident involving his former paramour, defendant was arrested and arraigned in Town Court. At that time, defendant was apparently represented by attorney Marcia Moss, who apparently had been assigned to him by Town Court. The following week, an indictment was filed and defendant was charged with burglary in the second degree, criminal use of a weapon in the second degree, unlawful imprisonment in the second degree and menacing in the second degree. When defendant was arraigned in County Court, he stated to the court that he did not want Moss to represent him, and he submitted an application for assigned counsel as an indigent. County Court determined that, based on his income, defendant was not eligible for assigned counsel as an indigent; the court then entered a plea of not guilty on defendant's behalf and directed defendant to seek retained counsel. At a subsequent appearance, defendant submitted a second application for assigned counsel, which was denied by the court. At defendant's next appearance, after defendant stated that he had been unable to secure counsel because he had been denied access to the telephone and writing materials, County Court adjourned the matter and directed that defendant be provided with access to a telephone and writing materials. The court also ordered defendant to undergo a psychiatric evaluation pursuant to CPL article 730.

In late November 2009, County Court arranged for attorney Matthew Favro to represent defendant, although the record is not clear as to how that came about. Defendant thereafter appeared in court with Favro and confirmed that he had accepted Favro as his attorney. The following month, after reviewing the report of the CPL article 730 examination, County Court found defendant fit to stand trial and Favro thereafter filed various motions and notices on defendant's behalf, including a notice of an affirmative defense of mental disease and defect. Ultimately, on January 6, 2010, defendant—still represented by Favro—pleaded guilty to burglary in the second degree and criminal use of a weapon in the second degree in full satisfaction of the indictment and waived his right to appeal. On defendant's behalf, during the plea hearing, Favro withdrew the notice of an affirmative defense of mental disease and defect.

Throughout January 2010, defendant sent various pro se requests to County Court, including a request to withdraw his plea and a request to have Favro removed as his counsel, although defendant subsequently withdrew those motions. At a subsequent appearance, however, defendant, Favro and attorney Edward Narrow executed a consent to change attorneys so that Narrow could represent defendant. Narrow then requested an adjournment of the sentencing and filed a motion to withdraw defendant's plea. County Court denied the motion and thereafter sentenced defendant in accordance with the plea agreement to concurrent prison terms of 10 years, with 2 1/2 years of postrelease supervision, for each of his convictions. Defendant appeals.

The crux of defendant's arguments is that Moss's representation of him was not properly terminated until he personally retained Narrow and, therefore, everything that occurred between his arraignment in County Court in October 2009 and the retention of Narrow in February 2010—all of which occurred without Moss present, including his guilty plea—was done in violation of his right to counsel; thus, the court should have granted his motion to withdraw his plea. According to defendant, Favro's representation of him did not cure his deprivation of counsel because it was “not achieved through any recognized practice” and, in any event, Favro's representation was ineffective.

By pleading guilty, defendant forfeited his right to argue that he was denied the right to counsel at the preliminary hearings ( see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000]; People v. Terenzi, 57 A.D.3d 1228, 1229, 870 N.Y.S.2d 534 [2008], lv. denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ). To the extent that defendant claims that he was not represented by counsel at the time he entered his guilty plea, the record belies his claim. Although he contends that Moss was his attorney of record at the time of the plea proceedings, the only evidence in the record to establish that Moss ever represented defendant is a letter from the District Attorney's office notifying her of grand jury proceedings, defendant's mention of her during arraignment in County Court and defendant's mention of her in an undated pro se motion. The record contains neither a notice of appearance entered by her nor any proof that she had been assigned to defendant pursuant to County Law §§ 718 and 722(4). However, the record does contain evidence that defendant clearly rejected Moss's purported representation and, when he could not retain counsel on his own, he expressly accepted representation by Favro, who then accompanied defendant to numerous court appearances, made appropriate motions on defendant's behalf and negotiated a favorable plea agreement, among other things. Although Favro's...