PEOPLE v. GUILDER (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (Kelly McKeighan, J.), rendered October 28, 2022, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and petit larceny.

In March 2022, defendant was charged in an indictment with burglary in the second degree and petit larceny stemming from allegations that he had unlawfully entered a home with intent to commit a crime therein.  Defendant was represented from the outset by assigned counsel, who advised County Court at an initial pretrial conference that defendant had attempted to fire him, and the matter was adjourned for assigned counsel to confer with defendant.  During subsequent appearances, defendant recounted his complaints regarding counsel's representation and requested, among other things, the assignment of new counsel, which the court denied finding no grounds for relieving assigned counsel, each time addressing defendant's complaints and explaining the relevant legal principles and proceedings.  At a September 2022 appearance, the court assigned a second attorney to assist in the defense, who thereafter appeared with defendant and assigned counsel, as defendant indicated that he wanted both attorneys to represent him.¹  The court adjourned the scheduled trial to permit defense counsel to prepare and to consult with defendant regarding the court's offer to impose the minimum prison term of seven years, to be followed by five years of postrelease supervision, if he elected to plead guilty to the indictment.  At the next appearance, after defendant conferred with both attorneys and, at assigned counsel's request, the court held a sealed proceeding outside of the presence of the People at which assigned counsel outlined his expected trial strategy, which differed from defendant's preferred strategy.  The court advised defendant that while it was his decision whether to testify, trial strategy was a matter for defense counsel.

At the following appearance, defendant accepted County Court's plea offer and entered a guilty plea to both charges;  in exchange, he was sentenced, as a second violent felony offender, to the agreed-upon prison term of seven years, to be followed by five years of postrelease supervision, upon his conviction for burglary in the second degree and to time served upon his petit larceny conviction.  Defendant appeals.

We affirm.  Defendant argues that his conviction must be vacated because County Court erred in denying his request for the assignment of substitute counsel prior to his plea.  However, defendant abandoned his request when he decided to enter a guilty plea while represented by his initially assigned counsel – after being assigned additional defense counsel with whom to confer – and after assuring the court that it had adequately addressed his complaints (see People v. James, 215 A.D.3d 1176, 1177–1178, 187 N.Y.S.3d 858 [3d Dept. 2023], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 750, 215 N.E.3d 1191 [2023];  People v. Crosby, 195 A.D.3d 1602, 1604, 149 N.Y.S.3d 729 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 436, 175 N.E.3d 462 [2021]).  Moreover, this claim is “unpreserved for our review given defendant's failure to make an appropriate postallocution motion to withdraw his plea” despite an opportunity to do so prior to sentencing (People v. See, 206 A.D.3d 1153, 1155, 168 N.Y.S.3d 743 [3d Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 802, 204 N.E.3d 438 [2023];  see People v. Mehalick, 226 A.D.3d 1263, 1264, 210 N.Y.S.3d 331 [3d Dept. 2024], lv denied 42 N.Y.3d 928, 216 N.Y.S.3d 118, 240 N.E.3d 837 [2024];  People v. James, 215 A.D.3d at 1178, 187 N.Y.S.3d 858;  People v. Duckett, 205 A.D.3d 1229, 1230 n 1, 168 N.Y.S.3d 178 [3d Dept. 2022], lv denied 39 N.Y.3d 939, 177 N.Y.S.3d 517, 198 N.E.3d 760 [2022];  People v. Crampton, 201 A.D.3d 1020, 1022, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022]);  nor is the narrow exception to the preservation requirement implicated here (see People v. See, 206 A.D.3d at 1155, 168 N.Y.S.3d 743).

To the extent that defendant contends that he was denied the effective assistance of counsel, impacting the voluntariness of his guilty plea, this claim survives his guilty plea but is also unpreserved (see People v. Montgomery, 221 A.D.3d 1347, 1348–1349, 200 N.Y.S.3d 795 [3d Dept. 2023], lv denied 41 N.Y.3d 966, 208 N.Y.S.3d 541, 232 N.E.3d 219 [2024];  cf.  People v. Petgen, 55 N.Y.2d 529, 534–535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982]).  Contrary to defendant's arguments, assigned counsel did not seek to discredit his alibi-related efforts but, rather, devised a cogent defense strategy that was consistent with the compelling evidence placing him on the property at the time of the burglary.  Assigned counsel was not obligated to pursue what he viewed to be a losing strategy or to seek to be relieved of the representation based upon defendant's differing views on the best trial strategy.  Defendant's arguments amount to a disagreement with defense counsel's reasonable assessment of the evidence and planned trial strategies that do not establish that he was denied meaningful representation (see People v. Dunham, 231 A.D.3d 1437, 1442, 221 N.Y.S.3d 327 [3d Dept. 2024];  People v. Hatcher, 211 A.D.3d 1236, 1240, 179 N.Y.S.3d 817 [3d Dept. 2022], lv denied 39 N.Y.3d 1078, 184 N.Y.S.3d 294, 204 N.E.3d 1075 [2023]).  To the extent that defendant relies upon matters not appearing in the record on direct appeal, they are more appropriately addressed in a motion to vacate pursuant to CPL article 440 (see People v. Duckett, 205 A.D.3d at 1230, 168 N.Y.S.3d 178).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In the alternative, defendant requested to proceed pro se.  However, after a lengthy inquiry by County Court, he concluded that he did not want to proceed without legal representation.  On appeal, defendant does not raise any issues with respect to that request.  Defendant also indicated that he wanted to hire an attorney of his choosing, which he was advised was his right, but he did not do so.

McShan, J.

Clark, J.P., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.