PEOPLE v. RAGIN (2005)

 On appeal from a judgment convicting him, upon his plea of guilty, of assault in the first degree (Penal Law § 120.10[3] ), defendant contends that Supreme Court erred in accepting his waiver of the right to appeal.   The record establishes that defendant's waiver of the right to appeal was “voluntary and intelligent” (People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).   That waiver encompasses defendant's further contention that the sentence is unduly harsh or severe (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Watkins, 261 A.D.2d 962, 689 N.Y.S.2d 919, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112).

 The contention of defendant that he was denied effective assistance of counsel because his attorneys opposed his motion to withdraw his plea of guilty is without merit.   Defendant's original attorney did not affirmatively make statements adverse to defendant, argue against the motion, or become a witness against defendant (see People v. Viscomi, 286 A.D.2d 886, 730 N.Y.S.2d 748, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370). Were we to conclude that the attorney's statement was impliedly in opposition to defendant's pro se motion, we would nevertheless conclude that the court properly responded by assigning new counsel to represent defendant on the motion and allowing a de novo consideration thereof (see generally People v. Betsch, 4 A.D.3d 818, 819, 772 N.Y.S.2d 175, lv. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467, 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572).   Defendant's contention that the second attorney was also ineffective is similarly without merit.   The attorney did not oppose the motion, but instead explained to the court that defendant had decided to withdraw it after the attorney had explained to him the potential consequences if the court granted the motion.

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

MEMORANDUM: