People v. Shaw

• Decision Date: 19 June 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DARRELL L. SHAW, Appellant.
• Court: New York Supreme Court — Appellate Division

306 A.D.2d 697

761 N.Y.S.2d 701

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DARRELL L. SHAW, Appellant.

Spain, J.

Decided June 19, 2003.

Crew III, J.P., Carpinello and Mugglin, JJ., concur.

Spain, J.

Defendant was charged with multiple crimes arising from an incident on December 30, 2000 during which he entered the home of a former girlfriend, who had secured an order of protection against him, and threatened her with a handgun. Defendant pleaded not guilty to the charges and the case was scheduled for trial. On the day the trial was to commence, County Court noted its recent receipt of a letter from defense counsel requesting that he be allowed to withdraw due to the strained relationship between he and defendant. When asked, defendant initially concurred, criticizing, among other things, counsel's representation of him in Family Court matters and counsel's complaints related to this case. County Court explored this issue at length with all of the involved parties, during which defendant expressly withdrew his oral request for new counsel and the court declined to appoint new counsel. After conferring with counsel in private, defendant entered a plea of guilty to attempted burglary in the second degree and criminal contempt in the first degree, stating that he had been afforded adequate time to discuss the plea with counsel and his parents, and executed a written waiver of the right to appeal. Sentenced as a second felony offender on the burglary charge to a determinate prison term of three years, to be followed by a five-year period of postrelease supervision, and an indeterminate prison term of 1½ to 3 years on the contempt charge, to run concurrently, defendant now appeals.

Defendant contends that he only entered a guilty plea because his counsel was unprepared to proceed with the trial, rendering counsel's representation ineffective and his guilty plea involuntary, entitling him to vacate his plea. Initially, we note that although defendant's waiver of his right to appeal does not preclude this Court's consideration of his ineffective assistance of counsel claim to the extent that it impacts upon the voluntariness of his plea (see People v Pelton, 289 AD2d 697, 697 [2001], lv denied 97 NY2d 732 [2002]; People v Negron, 286 AD2d 824, 825 [2001], lv denied 97 NY2d 732 [2002]), defendant's failure to make a motion to withdraw his plea or to vacate the judgment of conviction on this ground renders this claim unpreserved for our review (see People v McCann, 303 AD2d 780, 781 [2003]; People v Camp, 302 AD2d 629, 630 [2003]).

In any event, addressing defendant's claim in the interest of justice, we find it to be without merit. The record discloses that defense counsel made appropriate motions, and succeeded in obtaining dismissal of a superseding indictment and suppression of defendant's statements to police following a Huntley hearing at which defendant testified. Counsel also procured a very advantageous plea agreement and, as County Court noted, rendered "extremely vigorous and effective representation," which is apparent at every stage of this matter from the arraignment through sentencing. In context, defense counsel's statement on the day set for trial that he wished to be replaced...