PEOPLE v. FIFIELD (2005)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted use of a child in a sexual performance (Penal Law §§ 110.00, 263.05) and rape in the third degree (§ 130.25 [2] ).   Defendant's written waiver of the right to appeal and defendant's responses during the plea proceeding establish that the waiver was voluntary, knowing, and intelligent (see People v. Johnston, 17 A.D.3d 1103, 793 N.Y.S.2d 806;  People v. Debo, 234 A.D.2d 944, 945, 652 N.Y.S.2d 174, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359;  see also People v. Lynch, 4 A.D.3d 809, 771 N.Y.S.2d 435, lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921).   The valid waiver of the right to appeal encompasses defendant's challenge to the factual sufficiency of the plea allocution with respect to attempted use of a child in a sexual performance (see People v. King, 20 A.D.3d 907, 798 N.Y.S.2d 638;  People v. Ball, 20 A.D.3d 925, 797 N.Y.S.2d 331;  People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352).   In any event, defendant was charged with use of a child in a sexual performance and pleaded guilty to a lesser included offense, and thus no factual colloquy was required (see People v. Thelbert, 17 A.D.3d 1049, 793 N.Y.S.2d 784;  People v. Turner, 16 A.D.3d 1150, 790 N.Y.S.2d 916, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 265, 834 N.E.2d 1275;  Zimmerman, 219 A.D.2d at 848, 631 N.Y.S.2d 951).   The waiver of the right to appeal also encompasses defendant's challenge to the severity of the sentence (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).

 We reject the further contention of defendant that County Court abused its discretion in denying his pro se motions to withdraw the plea.   In support thereof, defendant made generalized claims of innocence without support in the record (see People v. May, 305 A.D.2d 1095, 759 N.Y.S.2d 716, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629;  People v. Viscomi, 286 A.D.2d 886, 887, 730 N.Y.S.2d 748, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370), and his claims of duress and coercion are belied by the statements he made during the plea colloquy (see People v. Forshey, 294 A.D.2d 868, 741 N.Y.S.2d 486, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229).   The record establishes that defendant entered into a favorable and voluntary plea after consultation with counsel, and thus we conclude that defendant's pro se motions to withdraw the plea were properly denied (see People v. Rivers, 296 A.D.2d 861, 862, 744 N.Y.S.2d 918, lv. denied 99 N.Y.2d 539, 752 N.Y.S.2d 600, 782 N.E.2d 578).   We reject the further contention of defendant that the court should have assigned new counsel for defendant.   Defense counsel had no duty to support defendant's pro se motion, and the record establishes that defense counsel did not take a position that was adverse to that of defendant (see Viscomi, 286 A.D.2d at 886, 730 N.Y.S.2d 748;  cf. People v. Chaney, 294 A.D.2d 931, 932, 741 N.Y.S.2d 776).

 The contentions of defendant in his pro se supplemental brief regarding suppression issues are encompassed by his waiver of the right to appeal (see generally People v. Austin, 4 A.D.3d 829, 830, 771 N.Y.S.2d 449, lv. denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916;  People v. Ray, 307 A.D.2d 754, 755, 762 N.Y.S.2d 558, lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630).   In any event, defendant forfeited the right to raise those issues because he pleaded guilty before the court issued its suppression ruling (see People v. Scaccia, 6 A.D.3d 1105, 776 N.Y.S.2d 420, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837).   Defendant also contends in his pro se supplemental brief that he received ineffective assistance of trial and appellate counsel.   To the extent that the contention of defendant with respect to ineffective assistance of trial counsel is not forfeited by his plea of guilty and survives the waiver of the right to appeal, we conclude that it is without merit (see Thelbert, 17 A.D.3d at 1049, 793 N.Y.S.2d 784).   Defendant's contention with respect to ineffective assistance of appellate counsel also is without merit (see People v. McKinney, 302 A.D.2d 993, 995, 755 N.Y.S.2d 541, lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 395, 796 N.E.2d 487).   The contention of defendant that the prosecutor engaged in misconduct is encompassed by his waiver of the right to appeal and, in any event, is forfeited by his plea of guilty (see People v. Williams, 253 A.D.2d 901, 678 N.Y.S.2d 525;  see generally People v. Heinig, 21 A.D.3d 1297, 801 N.Y.S.2d 670;  People v. Davis, 289 A.D.2d 1069, 735 N.Y.S.2d 851, lv. denied 97 N.Y.2d 753, 742 N.Y.S.2d 613, 769 N.E.2d 359).   We have considered the remaining contentions raised in the pro se supplemental brief and conclude that they are without merit.

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

MEMORANDUM: