PEOPLE v. IRVINE (2007)

 On appeal from a judgment convicting him upon a plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that County Court erred in summarily denying his motion to withdraw his plea and for the assignment of new counsel.   We conclude that the court conducted a sufficient inquiry and afforded defendant a “reasonable opportunity to present his contentions” (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;  see People v. Stephens, 6 A.D.3d 1123, 1124, 775 N.Y.S.2d 684, lv. denied 3 N.Y.3d 663, 782 N.Y.S.2d 705, 816 N.E.2d 578, 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838).  “The contention of defendant that the plea was coerced and thus was not knowingly, voluntarily or intelligently entered ‘is belied by [his] statement during the plea proceeding that [he] was not threatened, coerced or otherwise influenced against [his] will into pleading guilty’ ” (People v. Nichols, 21 A.D.3d 1273, 1274, 801 N.Y.S.2d 665, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165;  see People v. Gradia, 28 A.D.3d 1206, 1206-1207, 812 N.Y.S.2d 922, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253).   Furthermore, the fact that defendant was required “to accept or reject the plea offer within a short time period does not amount to coercion” (People v. Lesame, 239 A.D.2d 801, 802, 657 N.Y.S.2d 544, lv. denied 90 N.Y.2d 941, 664 N.Y.S.2d 759, 687 N.E.2d 656;  see People v. Thomas, 39 A.D.3d 1197, 1198-1199, 834 N.Y.S.2d 814).   We further conclude that “the court made an appropriate inquiry and determined that there was no good cause for substitution of assigned counsel” (People v. Burgos, 291 A.D.2d 904, 904, 738 N.Y.S.2d 268, lv. denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357;  see generally People v. Sides, 75 N.Y.2d 822, 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233).   Contrary to the contention of defendant, he showed no conflict of interest or other irreconcilable conflict with defense counsel (cf. Sides, 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and defense counsel did not take a position adverse to defendant with respect to defendant's motion for the assignment of new counsel (cf. People v. Chaney, 294 A.D.2d 931, 741 N.Y.S.2d 776).

 Contrary to defendant's further contention, the record establishes that, at the time of the plea, defendant validly waived his right to appeal, and that waiver was not later rendered invalid by defendant's reluctance to sign the written waiver of the right to appeal at the time of sentencing (see People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  People v. Marrero, 242 A.D.2d 800, 661 N.Y.S.2d 1015).   Additionally, defendant's waiver of the right to appeal does not violate public policy (see generally People v. Seaberg, 74 N.Y.2d 1, 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   The valid waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution (see People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333;  People v. Montstream, 21 A.D.3d 1353, 1354, 804 N.Y.S.2d 154, lv. denied 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164;  People v. King, 20 A.D.3d 907, 798 N.Y.S.2d 638, lv. denied 5 N.Y.3d 829, 804 N.Y.S.2d 44, 837 N.E.2d 743), but it does not encompass his challenge to the voluntariness of the plea (see People v. Harrison, 4 A.D.3d 825, 771 N.Y.S.2d 448, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919;  People v. Morrow, 295 A.D.2d 990, 743 N.Y.S.2d 356).   As previously noted, however, that contention lacks merit (see Nichols, 21 A.D.3d at 1274, 801 N.Y.S.2d 665;  see also People v. Bennett, 24 A.D.3d 975, 807 N.Y.S.2d 665, lv. denied 6 N.Y.3d 831, 814 N.Y.S.2d 79, 847 N.E.2d 376).

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

MEMORANDUM: