PEOPLE v. IRELAND (1999)

Appeal from a judgment of the County Court of Essex County (Ryan, J.), rendered December 3, 1997, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the third degree.

After defendant and his wife were indicted on multiple counts of criminal possession of stolen property and other crimes, they retained the services of an attorney who represented them through initial proceedings, including a Gomberg hearing.   Claiming misconduct and deception, defendant and his wife discharged the attorney and retained another attorney who negotiated a plea bargain.   Pursuant to the plea bargain, defendant entered an Alford plea of guilty to a single count of criminal possession of stolen property in the third degree in full satisfaction of all charges pending against him and he was sentenced to a prison term of 1 to 3 years.   As part of the plea bargain defendant waived his right to appeal.   Nevertheless, defendant appeals, claiming that he was deprived of the effective assistance of counsel by his first attorney.

 Although a defendant may challenge the competency of his or her legal representation despite a knowing and voluntary waiver of the right to appeal (see, People v. Harris, 242 A.D.2d 782, 661 N.Y.S.2d 315, lv. denied 91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 965), the claim is limited to the impact of the alleged ineffective assistance on the voluntariness of the guilty plea (see, People v. Lynch, 256 A.D.2d 651, 683 N.Y.S.2d 297, lv. denied 93 N.Y.2d 1004, 695 N.Y.S.2d 750, 717 N.E.2d 1087;  People v. Ellett, 245 A.D.2d 952, 954, 667 N.Y.S.2d 137, lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 407, 693 N.E.2d 754), and there is nothing in the record to demonstrate that defendant's plea was infected by any ineffective assistance of counsel (see, People v. Defino, 200 A.D.2d 907, 607 N.Y.S.2d 170, lv. denied 83 N.Y.2d 851, 612 N.Y.S.2d 383, 634 N.E.2d 984).   In any event, having knowingly and voluntarily entered a guilty plea while represented by the second attorney, who was aware of the alleged deficiencies of the first attorney, provided effective assistance and negotiated a favorable plea bargain, defendant forfeited any claim regarding the competency of the first attorney (see, People v. Petgen, 55 N.Y.2d 529, 534-535, 450 N.Y.S.2d 299, 435 N.E.2d 669;  People v. Cance, 155 A.D.2d 764, 547 N.Y.S.2d 702).

ORDERED that the judgment is affirmed.

MERCURE, J.

CARDONA, P.J., MIKOLL, YESAWICH JR. and MUGGLIN, JJ., concur.