People v. Viscomi, 4

• Decision Date: 28 September 2001
• Docket Number: 4,99-05513
• Parties: PEOPLE OF THE STATE OF NEW YORK,ANTHONY VISCOMI,KA 99-05513. (Erie Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

ANTHONY VISCOMI, DEFENDANT-APPELLANT.

KA 99-05513. (Erie Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

September 28, 2001

PRESENT: PINE, J. P., WISNER, HURLBUTT, KEHOE AND GORSKI, JJ.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment entered upon a guilty plea convicting him of two counts of murder in the second degree (Penal Law § 125.25 [2], [3]) and other crimes arising from the robbery of a pizza delivery man. We reject the contention of defendant that he was denied effective assistance of counsel by the failure of his assigned counsel to support his motion to withdraw his guilty plea. "An attorney assigned to represent a defendant in a criminal case has no duty to participate in a baseless pro se motion to withdraw a plea of guilty which was voluntarily, knowingly, and intelligently made [citations omitted]. * * * Assigned counsel did not argue in opposition to the defendant's motion, become a witness against him, or make any statements which were adverse to him [citations omitted]. Rather, counsel attempted to clarify the circumstances surrounding the plea proceedings" (People v Caple, 279 A.D.2d 635, 635-636).

The knowing, intelligent and voluntary waiver by defendant of the right to appeal encompasses his contention that Supreme Court erred in accepting his guilty plea without first considering his application for new assigned counsel (see, People v Dunkins, 231 A.D.2d 587, lv denied 89 N.Y.2d 863; see also, People v Morgan, 275 A.D.2d 970, lv denied 96 N.Y.2d 761; People v Segrue, 274 A.D.2d 671, lv denied 95 N.Y.2d 908). In any event, defendant waived final determination of that application by pleading guilty before it was decided (see, People v Corti, 88 A.D.2d 345, 349-350; see also, People v Delarosa, 215 A.D.2d 773, lv denied 86 N.Y.2d 793).

Finally, we conclude that the court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea (see, People v Kellar, 222 A.D.2d 1092, lv denied 87 N.Y.2d 1021). "The defendant's belated and unsubstantiated claim of innocence, upon which his motion was based, was belied by his earlier admission of guilt during his plea of guilty" (People v McAllister 248 A.D.2d 641, lv denied 91 N.Y.2d 1010). The additional contention of defendant that he did not understand the consequences of his plea is refuted by the record of the plea...