PEOPLE v. RUSSELL (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of grand larceny in the second degree (Penal Law § 155.40[1] ).   Contrary to the contention of defendant, the record establishes that the waiver of his right to appeal was knowingly, intelligently and voluntarily entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660;  People v. Peterson, 35 A.D.3d 1195, 825 N.Y.S.2d 622, lv. denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462).   The further contention of defendant that he was denied effective assistance of counsel “ does not survive his guilty plea or his waiver of the right to appeal because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Dean, 48 A.D.3d 1244, 1245, 852 N.Y.S.2d 545, lv.denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [internal quotation marks omitted] ).   Although the contention of defendant that he was coerced into pleading guilty and thus that the plea was not voluntarily entered survives the waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (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. Williams, 272 A.D.2d 986, 708 N.Y.S.2d 673).   In any event, that contention lacks merit.  “[T]he fact that defendant was required to ‘accept or reject the plea offer within a short time period does not amount to coercion’ ” (People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615).   Nor was the plea rendered involuntary by County Court's initial reluctance to accept the plea agreement.   Courts are “not required to accept [a] defendant's ․ guilty plea merely because the plea bargain had been found acceptable to both the prosecution and defense” (People v. Smith, 272 A.D.2d 679, 682, 708 N.Y.S.2d 485, lv. denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151).

The challenge by defendant to the factual sufficiency of the plea allocution does not survive his waiver of the right to appeal (see Irvine, 42 A.D.3d at 950, 838 N.Y.S.2d 765;  People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333, lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901), and defendant also failed to preserve that contention for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333).   In any event, defendant's contention is without merit inasmuch as defendant stated during the plea colloquy upon inquiry by the court that, when he took the money from the victim, he did not intend to pay any of it back to her, although he did ultimately pay back a small part of the stolen money (see Penal Law § 155.05[1];  cf. People v. Camelo, 48 A.D.3d 1303, 1304-1305, 852 N.Y.S.2d 533).

 Contrary to the further contention of defendant, the court did not abuse its discretion in denying his request for a substitution of counsel (see generally People v. Sanchez, 7 A.D.3d 645, 777 N.Y.S.2d 144, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837).   The court was obligated to make “some minimal inquiry” into defendant's reasons for requesting new counsel (People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and the record establishes that the court did so herein.   Finally, defendant contends that the court erred in failing to address his request to proceed pro se.   The record establishes, however, that defendant did not make that request “ ‘clearly and unequivocally’ ” in his letter to the court or at any other time, and thus the court did not err in failing to address that alleged request (People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92;  see generally People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341).

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

MEMORANDUM: