PEOPLE v. LATHROP (2019)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of murder in the second degree (Penal Law § 125.25[3]). Initially, we agree with defendant that his waiver of the right to appeal is invalid. Although the record reflects that Supreme Court explained to defendant that the waiver of the right to appeal would encompass certain issues, including those related to sentencing and the court's suppression ruling, the record fails to establish that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; see People v. Ware, 159 A.D.3d 1401, 1401, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018]). Moreover, the court never elicited an acknowledgment that defendant was voluntarily waiving his right to appeal (see People v. Alston, 163 A.D.3d 843, 844, 81 N.Y.S.3d 167 [2d Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018]; see also People v. Haskins, 86 A.D.3d 794, 796, 928 N.Y.S.2d 374 [3d Dept. 2011], lv denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011]; People v. Moran, 69 A.D.3d 1055, 1056, 891 N.Y.S.2d 678 [3d Dept. 2010]). We nevertheless affirm the judgment of conviction.

Defendant contends that the court abused its discretion in denying his request for new counsel, made following the entry of his plea and prior to sentencing. To the extent that defendant's contention survives his guilty plea (see People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012]), we conclude that it lacks merit. “It is well settled that an indigent defendant is guaranteed the right to counsel by both the Federal and New York State Constitutions (see U.S. Const. 6th. Amend.; N.Y. Const., art. I, § 6), but this entitlement does not encompass the right to counsel of [his or her] own choosing ․ While a court has a duty to investigate complaints concerning counsel, ‘this is far from suggesting that an indigent's request that a court assign new counsel is to be granted casually’ ” (People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010], quoting People v. Sawyer, 57 N.Y.2d 12, 19, 453 N.Y.S.2d 418, 438 N.E.2d 1133 [1982], rearg. dismissed 57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343 [1982], cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024 [1983]). Rather, “a court's duty to consider such a motion is invoked only where a defendant makes ․ specific factual allegations of ‘serious complaints about counsel’ ” (id. at 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978]). “If such a showing is made, the court must make at least a ‘minimal inquiry,’ and discern meritorious complaints from disingenuous applications” (id. at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]). Substitution may then occur only for “good cause,” and such a determination is “within the discretion and responsibility of the trial judge” (id. at 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [internal quotation marks omitted] ). Here, “[e]ven assuming, arguendo, that defendant's complaints about defense counsel suggested a serious possibility of good cause for a substitution of counsel requiring a need for further inquiry,” we conclude that the court “afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit” (People v. Bethany, 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert. denied ––– U.S. ––––, 138 S. Ct. 1571, 200 L.Ed.2d 760 [2018]; see People v. Martinez, 166 A.D.3d 1558, 1559, 88 N.Y.S.3d 732 [4th Dept. 2018]).

Additionally, to the extent that defendant's contention that he was denied effective assistance of counsel survives his guilty plea, we conclude that it lacks merit. “There is no basis upon which to conclude that defendant did not enter the plea knowingly, voluntarily and intelligently” (People v. Williams, 124 A.D.3d 1285, 1286, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 34 N.E.3d 381 [2015]) and, although defendant contends that defense counsel was ineffective in failing to move to withdraw the guilty plea, it is well settled that “[t]here can be no denial of effective assistance of [defense] counsel arising from counsel's failure to make a motion or argument that has little or no chance of success” (id. [internal quotation marks omitted]; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]). Moreover, defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Booth, 158 A.D.3d 1253, 1255, 70 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] [internal quotation marks omitted] ).

Finally, we have considered defendant's remaining contention and conclude that it does not require modification or reversal of the judgment.