PEOPLE v. ZIRPOLA (1997)

 The waiver of appeal does not preclude the challenge by defendant to the legality of his sentence (see, People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022) or his contention that he was denied effective assistance of counsel on his motion to withdraw the plea and for reassignment of counsel (see, People v. Hayes, 194 A.D.2d 998, 599 N.Y.S.2d 679;  People v. Ferguson, 192 A.D.2d 800, 596 N.Y.S.2d 533, lv. denied 82 N.Y.2d 717, 602 N.Y.S.2d 814, 622 N.E.2d 315).

 By pleading guilty on condition that he admit that he is a second felony offender, defendant waived his right to a hearing on that issue (see, People v. Stephens, 193 A.D.2d 1087, 598 N.Y.S.2d 410, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325;  People v. Cates, 104 A.D.2d 895, 896, 480 N.Y.S.2d 512).   In any event, County Court afforded defendant adequate opportunity to challenge the constitutionality of his prior conviction and properly rejected that challenge.

 There is no merit to the contention that defendant was denied effective assistance of counsel because his attorney became an adverse witness on defendant's pro se motion to withdraw the plea and for reassignment of counsel.   The court decided that part of the motion seeking reassignment of counsel before counsel made the alleged adverse statement concerning his efforts as counsel and, thus, defendant was not prejudiced by that statement and was not denied effective assistance of counsel (see, People v. Jones, 233 A.D.2d 944, 649 N.Y.S.2d 578;  People v. Maragh, 208 A.D.2d 563, 617 N.Y.S.2d 27, lv. denied 84 N.Y.2d 1013, 622 N.Y.S.2d 924, 647 N.E.2d 130;   People v. Rodriguez, 189 A.D.2d 684, 592 N.Y.S.2d 965, lv. denied 81 N.Y.2d 892, 597 N.Y.S.2d 953, 613 N.E.2d 985).

Judgment unanimously affirmed.

MEMORANDUM: