PEOPLE v. BARR

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

The PEOPLE of the State of New York, Respondent, v. Garland BARR, Defendant–Appellant.

1241

Decided: February 01, 2019

PRESENT:  SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ. CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

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 plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ).  Defendant contends that his guilty plea was not knowingly, voluntarily, and intelligently entered because, at the time of the plea, County Court did not advise him that he would be sentenced as a second violent felony offender and failed to advise him of the right to a hearing to challenge the predicate felony statement.  Although that contention survives defendant's valid waiver of the right to appeal (see People v. Irby, 158 A.D.3d 1050, 1051, 70 N.Y.S.3d 687 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ), defendant failed to preserve his contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on those grounds (see id.;  see generally People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).

Defendant further contends that the court failed to make an appropriate inquiry into his request for substitution of counsel.  Initially, we note that defendant's contention is encompassed by his plea and his valid waiver of the right to appeal except to the extent that the contention implicates the voluntariness of the 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] ).  In any event, “defendant abandoned his request for new counsel when he ‘decid[ed] ․ to plead guilty while still being represented by the same attorney’ ” (People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013];  see People v. Tyes, 160 A.D.3d 1447, 1448, 72 N.Y.S.3d 902 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ).  To the extent that defendant alleges ineffective assistance of counsel, that contention does not survive the plea and valid waiver of the right to appeal because defendant has not demonstrated that any allegedly ineffective assistance of counsel infected the plea bargaining process or that defendant entered the plea because of his attorney's allegedly poor performance (see Tyes, 160 A.D.3d at 1447, 72 N.Y.S.3d 902).