People v. Lewicki

• Decision Date: 13 June 2014
• Citation: 987 N.Y.S.2d 755,118 A.D.3d 1328,2014 N.Y. Slip Op. 04328
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan LEWICKI, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1328

987 N.Y.S.2d 755

2014 N.Y. Slip Op. 04328

The PEOPLE of the State of New York, Respondent,

v.Jonathan LEWICKI, Defendant–Appellant. (Appeal No. 1.).

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

June 13, 2014.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, and DeJOSEPH, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20).

In both appeals, defendant contends that Supreme Court failed to make a sufficient inquiry into his request for new counsel. We note at the outset that, to the extent that defendant challenges the court's failure to assign him new counsel prior to the plea, that contention is “encompassed by his plea and his valid waiver of the right to appeal in each appeal except to the extent that it implicates the voluntariness of the plea” ( People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438,lv. denied21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278). In any event, although defendant made vague, conclusory assertions that there was a “lack of representation” with respect to his case and that defense counsel had not visited him in jail as promised mere days before the scheduled trial on the murder charge, the record establishes that defendant did not express any further concerns with defense counsel before pleading guilty, and he confirmed during the plea colloquy that he was satisfied with his attorney's representation. Defendant therefore “abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ ” ( id.).

With respect to defendant's post-plea request for substitution of counsel, we conclude that defendant “failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry” ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283;see People v. Wilson, 112 A.D.3d 1317, 1318, 977 N.Y.S.2d 515;People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808,lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328). Defendant's “form motion did not contain any specific factual allegations that would indicate a serious conflict with counsel” ( Porto, 16 N.Y.3d at 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283), but rather it contained only general assertions of dissatisfaction with defense counsel's representation ( see People v. Hopkins, 67 A.D.3d 471, 471, 889 N.Y.S.2d 27,lv. denied14 N.Y.3d 771, 898 N.Y.S.2d 103, 925 N.E.2d 108;see generally People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Defendant's further allegations that defense counsel “lied” to him and talked him into pleading guilty are belied by the record ( see People v. Carter, 304 A.D.2d 771, 771–772, 757 N.Y.S.2d 776).

Contrary to the further contention of defendant in each appeal, we conclude that the court did not abuse its discretion in denying his motion to set aside his guilty pleas. “The determination whether to permit a defendant to withdraw a guilty plea rests within the sound discretion of the court” ( People v. Said, 105 A.D.3d 1392, 1393, 963 N.Y.S.2d 796,lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397), and “a court does not abuse its discretion in denying a motion to withdraw a guilty plea where the defendant's allegations in support of the motion are belied by the defendant's statements during the plea proceeding” ( People v. Williams, 103 A.D.3d 1128, 1128, 958 N.Y.S.2d 826,lv. denied21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895). Here, defendant's claim that defense counsel “told” him to plead guilty is belied by defendant's statements during the plea colloquy that he was satisfied with the representation of defense counsel, that he had sufficient time to consider the plea, that no one had forced him to plead guilty, and that he was entering the plea voluntarily ( see People v. Rossborough, 105 A.D.3d 1332, 1333, 963 N.Y.S.2d 494,lv. denied21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858;People v. Ivey, 98 A.D.3d 1230, 1231, 951 N.Y.S.2d 279,lv. dismissed20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330;People v. Garner, 86 A.D.3d 955, 955–956, 926...