PEOPLE v. HOBART

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kenneth A. HOBART, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P.J., HAYES, WISNER, KEHOE and BURNS, JJ. Philip Rotschild, for defendant-appellant. Victoria M. Anthony, for plaintiff-respondent.

On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25[2] ) and sentencing him to an indeterminate term of incarceration of 25 years to life, defendant contends that his plea was not knowing, intelligent, and voluntary because Supreme Court refused to assign new counsel at defendant's request and because the plea was induced by the threat of a heavier sentence if defendant did not plead guilty.   Those contentions are unpreserved for our review because defendant failed to move to withdraw the plea or vacate the judgment of conviction (see, People v. Woods, 281 A.D.2d 929, 721 N.Y.S.2d 851;  People v. Nixon, 278 A.D.2d 941, 718 N.Y.S.2d 680, lv. denied 96 N.Y.2d 786, 725 N.Y.S.2d 650, 749 N.E.2d 219;  People v. Harriott, 277 A.D.2d 987, 716 N.Y.S.2d 343).   Indeed, it appears that defendant abandoned his request for a substitution of counsel, deciding instead to plead guilty while still being represented by the same attorney.   In any event, we discern no basis on this record for a mandatory substitution of counsel (see generally, People v. Sides, 75 N.Y.2d 822, 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Medina, 44 N.Y.2d 199, 206-209, 404 N.Y.S.2d 588, 375 N.E.2d 768).   The court made the requisite “minimal inquiry” into “ the nature of the disagreement or its potential for resolution” (People v. Sides, supra, at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and defendant was unable to articulate any basis for substitution of counsel (see, People v. Sides, supra, at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Brant, 277 A.D.2d 1022, 715 N.Y.S.2d 348, lv. denied 96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078;  People v. Schojan, 272 A.D.2d 932, 933, 709 N.Y.S.2d 273, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374;  People v. Benson, 265 A.D.2d 814, 814-815, 697 N.Y.S.2d 222, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097, cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499).

 There is no merit to defendant's further contention that the plea was involuntary because it was coerced by the explicit threat of a heavier sentence (see, People v. Hecht, 257 A.D.2d 493, 682 N.Y.S.2d 849, lv. denied 93 N.Y.2d 853, 688 N.Y.S.2d 501, 710 N.E.2d 1100;  People v. Miles, 256 A.D.2d 157, 683 N.Y.S.2d 423).   The risk of a heavier sentence after trial does not render a plea involuntary (see, People v. Dashnaw, 260 A.D.2d 658, 659, 688 N.Y.S.2d 268, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099;  People v. Polite, 259 A.D.2d 566, 687 N.Y.S.2d 385, lv. denied 93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945;  People v. Hillendale, 244 A.D.2d 911, 912, 665 N.Y.S.2d 196;  People v. Gibson, 167 A.D.2d 921, 561 N.Y.S.2d 999, lv. denied 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582).

Judgment unanimously affirmed.

MEMORANDUM: