GUANTERO, FERNANDO, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1029
KA 10-02513
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
FERNANDO P. GUANTERO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered July 29, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a plea of guilty of criminal contempt in the first
degree (Penal Law § 215.51 [c]) and, in appeal No. 2, he appeals from
a judgment convicting him upon a plea of guilty of attempted burglary
in the second degree (§§ 110.00, 140.25 [2]). With respect to both
appeals, defendant contends that his waiver of the right to appeal was
not knowingly, voluntarily, and intelligently entered. We reject that
contention (see generally People v Lopez, 6 NY3d 248, 256; People v
Hidalgo, 91 NY2d 733, 735). “The responses of defendant to County
Court’s questions during the plea colloquy establish that he
understood the consequences of waiving the right to appeal and
voluntarily waived that right” (People v Ruffins, 78 AD3d 1627, 1628;
see People v Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794).
Further, the court “ ‘made clear that the waiver of the right to
appeal was a condition of [the] plea, not a consequence thereof’ ”
(People v McCarthy, 83 AD3d 1533, 1533-1534, lv denied 17 NY3d 819),
and we note that defendant executed a written waiver of the right to
appeal (see People v Jones, 96 AD3d 1637, 1637; People v Colucci, 94
AD3d 1419, 1420, lv denied 19 NY3d 959).
Although the contention of defendant with respect to both appeals
that his plea was not voluntarily entered survives his valid waiver of
the right to appeal (see Dunham, 83 AD3d at 1424), defendant failed to
move to withdraw his plea or to vacate the judgment of conviction on
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KA 10-02513
that ground and thus failed to preserve that contention for our review
(see People v Oldshield, 93 AD3d 1238, 1238; Dunham, 83 AD3d at 1424).
Contrary to defendant’s contention in each appeal, this case does not
fall within the narrow exception to the preservation requirement set
forth in People v Lopez (71 NY2d 662, 666). Finally, defendant
contends in each appeal that the court erred in refusing to assign him
new counsel without inquiring into the grounds for substitution. We
note at the outset that defendant’s contention is encompassed by his
plea and his valid waiver of the right to appeal in each appeal except
to the extent that it implicates the voluntariness of the plea (see
People v Morris, 94 AD3d 1450, 1451, lv denied 19 NY3d 976; People v
Phillips, 56 AD3d 1163, 1164, lv denied 12 NY3d 761). 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 Hobart, 286 AD2d 916, 916, lv denied 97 NY2d 683; see
Morris, 94 AD3d at 1451; People v Munzert, 92 AD3d 1291, 1292).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court