MUNZERT, TIMOTHY C., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
178
KA 10-02503
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TIMOTHY C. MUNZERT, DEFENDANT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered November 15, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal mischief in the third
degree.
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 criminal mischief in the third degree
(Penal Law § 145.05), arising from an incident in which defendant
caused $1,895.42 in property damage to the Orleans Correctional
Facility, where he was an inmate. Prior to the plea proceeding,
defendant sent three pro se letters to the County Court Judge who
later accepted his plea and sentenced him. In those letters,
defendant requested new counsel, accused assigned defense counsel of
having a relationship that was one of “over-familiarity” with the
Assistant District Attorney (ADA) and the police and threatened a
civil action against the Judge, defense counsel and the ADA for
alleged wrongs defendant had suffered during this action.
Defendant contends that the court failed to consider his pro se
“motions,” i.e., the three letters. We conclude that “defendant
abandoned his request for a substitution of counsel [contained in the
first letter by] plead[ing] guilty while still being represented by
the same attorney” (People v Hobart, 286 AD2d 916, 916, lv denied 97
NY2d 683). In any event, defendant did not make a “ ‘seemingly
serious request[]’ ” containing the requisite specific factual
allegations that would have triggered the court’s duty to consider
such a request (People v Porto, 16 NY3d 93, 100, quoting People v
Sides, 75 NY2d 822, 824). Furthermore, defendant’s “vague assertions
that defense counsel was not in frequent contact with him and did not
aid in his defense” were insufficient to demonstrate good cause for
substitution (People v MacLean, 48 AD3d 1215, 1217, lv denied 10 NY3d
-2- 178
KA 10-02503
866, 11 NY3d 790). We have considered defendant’s remaining
contentions with respect to the pro se letters and conclude that they
are without merit.
Defendant’s further contention that he was denied effective
assistance of counsel does not survive his guilty plea inasmuch as
defendant “failed to demonstrate that the plea bargaining process was
infected by [the] allegedly ineffective assistance or that defendant
entered the plea because of [defense counsel’s] allegedly poor
performance” (People v Maracle, 85 AD3d 1652, 1653, lv denied 17 NY3d
860 [internal quotation marks omitted]).
Entered: February 17, 2012 Frances E. Cafarell
Clerk of the Court