People v. Sider

• Decision Date: 28 October 1996
• Parties: The PEOPLE, etc., Respondent, v. Donald SIDER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 455

649 N.Y.S.2d 455

232 A.D.2d 666

The PEOPLE, etc., Respondent, v. Donald SIDER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 28, 1996.

John F. Clennan, Ronkonkoma, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Sharon Y. Brodt, of counsel; Lori B. Rodman, on the brief), for respondent.

Before BRACKEN, J.P., and COPERTINO, JOY, FLORIO and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered April 27, 1995, convicting him of kidnapping in the second degree and rape in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

We find no merit to the defendant's contentions that he should have been permitted to withdraw his plea of guilty, and that the court should have appointed new counsel. The decision to permit the withdrawal of a plea of guilty rests within the sound discretion of the court (see, CPL 220.60[3]; People v. Ochoa, 179 A.D.2d 689, 579 N.Y.S.2d 114). The defendant's unsupported, conclusory allegation of innocence at sentencing did not warrant vacatur of his plea (see, People v. McDowell, 198 A.D.2d 236, 604 N.Y.S.2d 801; People v. Bourdonnay, 160 A.D.2d 1014, 555 N.Y.S.2d 134). In addition, the defendant's plea was knowingly, intelligently, and voluntarily entered (see, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170). Moreover, there is no right of choice between court-appointed counsel. While courts have a duty to carefully evaluate complaints concerning court-appointed counsel, an indigent's request that a court assign new counsel should not be granted casually (see, People v. Sawyer, 57 N.Y.2d 12, 18-19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024; People v. Cunningham, 134 A.D.2d 273, 520 N.Y.S.2d 446). The defendant's bald assertion that his confidence in court-appointed counsel was lacking because an investigator was not hired was insufficient to justify a substitution.

Finally, by validly waiving his right to appeal, the defendant waived his right to challenge the excessiveness of his sentence (see, People v. Allen, 82 N.Y.2d 761, 603 N.Y.S.2d 820, 623 N.E.2d 1170). In any event, the defendant has no basis to now complain that his sentence was excessive (see, People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).