STIMUS, DERRICK J., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1198
KA 07-00625
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DERRICK J. STIMUS, DEFENDANT-APPELLANT.
KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER, FOR
DEFENDANT-APPELLANT.
DERRICK J. STIMUS, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered January 31, 2007. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
second degree (Penal Law § 220.18 [1]), defendant contends in his main
and pro se supplemental briefs that the plea was not knowing and
voluntary. Although defendant preserved that contention for our
review by his motion to withdraw his plea (cf. People v Moore, 6 AD3d
1076, 1076-1077, lv denied 3 NY3d 661), his contention is without
merit. Defendant advised County Court that he understood the rights
that he was waiving by pleading guilty; that he was satisfied with the
services of his attorney; and that he understood that, by pleading
guilty, he forfeited the right to contend on appeal that his arrest
was not based upon probable cause. We therefore conclude that
defendant’s plea was knowing and voluntary (see generally People v
Harris, 61 NY2d 9, 19).
Defendant also contends in his main and pro se supplemental
briefs that the court erred in denying his motion to withdraw his plea
without conducting a further inquiry into his allegations that he was
denied the right to effective assistance of counsel. “The court
afforded defendant the requisite ‘reasonable opportunity to present
his contentions’ in support of that motion . . . and [it] did not
abuse its discretion in concluding that no further inquiry was needed”
-2- 1198
KA 07-00625
(People v Strasser, 83 AD3d 1411, 1411, quoting People v Tinsley, 35
NY2d 926, 927). Defendant’s vague allegations that he was denied
effective assistance of counsel were rejected by the court, which had
presided over the pretrial proceedings and the plea. Defendant was
represented by different attorneys employed by the Public Defender’s
Office in connection with the plea and sentencing, at which time he
made the motion to withdraw his plea. Because the court determined
that the motion to withdraw the plea was without merit, we reject
defendant’s further contention that the court erred in failing to
assign new counsel to represent him with respect to the motion (see
generally People v Porto, 16 NY3d 93, 100-101).
We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none requires reversal or
modification.
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court