People v. Wellington

• Decision Date: 01 February 2019
• Docket Number: 1400,KA 17–01375
• Citation: 169 A.D.3d 1440,91 N.Y.S.3d 829
• Parties: The PEOPLE of the State of New York, Respondent, v. Chad WELLINGTON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1440

91 N.Y.S.3d 829

The PEOPLE of the State of New York, Respondent,

v.Chad WELLINGTON, Defendant–Appellant.

1400

KA 17–01375

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

Entered: February 1, 2019

DANIEL M. GRIEBEL, TONAWANDA, FOR DEFENDANT–APPELLANT.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHELLE K. FASSETT OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ). Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal, and that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; People v. Moore, 140 A.D.3d 1684, 1684–1685, 32 N.Y.S.3d 536 [4th Dept. 2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ).

Defendant further contends that he was denied effective assistance of counsel based on, inter alia, an alleged conflict of interest. To the extent that defendant's contention survives his guilty plea and valid waiver of the right to appeal (see People v. Cooper, 79 A.D.3d 1684, 1685, 917 N.Y.S.2d 450 [4th Dept. 2010], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ; see also People v. Jacques, 79 A.D.3d 1812, 1812, 913 N.Y.S.2d 609 [4th Dept. 2010], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ), we conclude that it lacks merit (see Cooper, 79 A.D.3d at 1685, 917 N.Y.S.2d 450 ; see also People v. Collins, 129 A.D.3d 1676, 1676–1677, 12 N.Y.S.3d 477 [4th Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ; see generally People v. Sanchez, 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ). Finally, defendant's contention that County Court erred in denying his request for substitution of counsel "is encompassed by the plea and the waiver of the right to appeal except to the extent that the contention implicates the voluntariness of the plea" ( People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ). In any event, defendant abandoned that request when he "decid[ed] ... to plead guilty while still being represented by the same attorney" ( id. [internal quotation marks omitted]; see People v. Kates, 162 A.D.3d 1627, 1629, 78 N.Y.S.3d 600 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 113 N.E.3d 954, 113 N.E.3d 954 [2018] ).