State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107498 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ROBERT TOLEDO,

Appellant.

________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Thomas F. Garner, Middleburgh, for appellant, and appellant

pro se.

James E. Conboy, District Attorney, Fonda (Sarah J.

Leszczynski of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Montgomery

County (Catena, J.), rendered October 27, 2014, convicting

defendant upon his plea of guilty of the crime of criminal sale

of a controlled substance in the third degree.

In satisfaction of a four-count indictment, defendant

pleaded guilty to criminal sale of a controlled substance in the

third degree, admitting that he sold heroin in exchange for cash. 

Pursuant to the plea agreement, defendant waived his right to

appeal and was sentenced, as a second felony drug offender, to a

prison term of eight years with three years of postrelease

supervision. Defendant now appeals.
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We affirm. Initially, contrary to defendant's contentions,

his combined oral and written waiver of appeal was knowing,

voluntary and intelligent (see People v Sanders, 25 NY3d 337,

339-341 [2016]; People v Lopez, 6 NY3d 248, 256 [2009]; cf.

People v Bradshaw, 18 NY3d 257, 265 [2011]). The record reflects

that defendant was advised that an appeal waiver was a condition

of the plea deal, was informed that he ordinarily retained the

right to appeal his conviction and sentence "to a higher court"

but that the People were requiring that he give up that right

and, after conferring with counsel throughout the colloquy,

defendant accepted this condition of the plea. The record belies

his claim that County Court intimated that the waiver was an

automatic consequence of his guilty plea, as the court completed

its discussion of the trial-related rights automatically

forfeited by the plea and then separately addressed the waiver of

appeal, while specifying that it was a condition of the People's

offer, without lumping it with the trial rights (see People v

Lopez, 6 NY3d at 256-257; People v Forget, 136 AD3d 1115, 1116

[2016], lv denied 28 NY3d 929 [2016]). Defendant then executed a

written waiver after reviewing it with counsel that made clear

that the waiver of appeal was separate and distinct from the

rights automatically forfeited by his plea and reflected

defendant's understanding of the waiver (see People v Lopez, 6

NY3d at 256). Given the valid appeal waiver, defendant is

precluded from challenging the negotiated sentence as harsh and

excessive (see id. at 255-256). 

While defendant's challenge to the voluntariness of his

plea survives his appeal waiver, it is unpreserved for our review

in the absence of an appropriate postallocution motion (see CPL

220.60 [2]; People v Williams, 27 NY3d 212, 214, 219-222 [2016];

People v Blair, 136 AD3d 1105, 1006 [2016], lvs denied 27 NY3d

1066, 1072 [2016]), and he did not make any statement during the

plea allocution that triggered the narrow exception to the

preservation requirement (see People v Lopez, 71 NY2d 662, 666-

667 [1988]). Defendant's claim that County Court failed to

adequately advise him of his constitutional, trial-related Boykin

rights (see Boykin v Alabama, 395 US 238, 243 [1969]) that he was

forfeiting by his plea was not preserved despite an opportunity

to do so; moreover, the record reflects that he was fully advised

and understood the waiver of his trial rights (see People v
-3- 107498 

Conceicao, 26 NY3d 375, 379, 381-384 [2015]). Further, it was

not necessary, as he now contends, that he personally recite the

elements of the crime, as his affirmative responses to the

court's questions were sufficient (see People v Griffith, 136

AD3d 1114, 1115 [2016]).

To the extent that defendant's ineffective assistance of

counsel claims implicate the voluntariness of his plea, they

survive his appeal waiver, but they are also not properly before

us because he never moved to withdraw his plea on this ground

(see People v Islam, 134 AD3d 1348, 1349 [2015]).1 While

defendant had unsuccessfully requested the assignment of a new

attorney in an earlier proceeding at which he rejected an initial

plea offer, he chose at the next appearance to proceed with the

plea and did not thereafter move to withdraw his plea. Moreover,

defendant failed to articulate good cause to replace assigned

counsel, such as a conflict of interest or irreconcilable

differences, and we discern no abuse of discretion in County

Court's denial of this request (see People v Smith, 18 NY3d 588,

592-593 [2012]; People v Khan, 139 AD3d 1261, 1264 [2016], lvs

denied 28 NY3d 932, 934 [2016]). In that regard, defendant's

generalized complaint that counsel had not spent sufficient time

with him did not establish good cause for substitution or compel

further inquiry under these circumstances (see People v Mitchell,

129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]). 

Contrary to his argument, defense counsel did not take a position

that was adverse to him or oppose substitution of counsel so as

to give rise to a conflict of interest (see People v Mitchell, 21

NY3d 964, 967 [2013]; People v Tyler, 130 AD3d 1383, 1385

[2015]). Rather, when the court inquired, counsel properly

recounted the steps he and his associate counsel had taken in

representing defendant, which was in response to defendant's

request (see id.; see also People v Washington, 25 NY3d 1091,

1095 [2015]; People v Nelson, 7 NY3d 883, 884 [2006]). Thus,

1 To the extent that defendant's pro se claims in part

concern matters that are outside the record on appeal, they are

more appropriately addressed in a motion to vacate pursuant to

CPL article 440 (see People v Clark, 135 AD3d 1239, 1241 [2016],

lv denied 27 NY3d 995 [2016]).
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were we to address these issues, we would find that defendant

received meaningful representation.2 Defendant's remaining

claims, including those properly raised in his pro se brief, have

been reviewed and determined to lack merit.

Garry, Lynch, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

2 Defendant's argument that counsel was ineffective for

failing to raise statutory and constitutional speedy trial claims

is unpreserved for our review as it was not raised in County

Court. Moreover, his statutory speedy trial claim does not

implicate the voluntariness of his plea and therefore does not

survive his appeal waiver, and it was forfeited by his guilty

plea (see People v Archie, 116 AD3d 1165, 1165 [2014]; People v

Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104

[2013]; People v Speranza, 96 AD3d 1164, 1165 [2012]).