JACKSON, LEMUELE, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
764
KA 10-00019
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LEMUELE JACKSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LEMUELE JACKSON, DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered October 28, 2009. The judgment
convicted defendant, upon his plea of guilty, of attempted murder in
the second 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 his plea of guilty of attempted murder in the
second degree (Penal Law §§ 110.00, 125.25 [1]) and, in appeal No. 2,
he appeals from a judgment convicting him upon his plea of guilty of
reckless endangerment in the first degree (§ 120.25). Defendant
contends in each appeal, in his main brief and pro se supplemental
brief, that Supreme Court abused its discretion in denying his motion
to withdraw each guilty plea because it was not knowingly, voluntarily
and intelligently entered. Although that contention survives
defendant’s valid waiver of the right to appeal (see People v Wright,
66 AD3d 1334, 1334, lv denied 13 NY3d 912), it is without merit.
“ ‘The unsupported allegations of defendant that [his family]
pressured him into accepting the plea bargain do not warrant vacatur
of his plea’ ” (People v James, 71 AD3d 1465, 1465). Further, there
is no indication in the record that defendant’s ability to understand
the plea proceeding was impaired based on his alleged failure to take
required medication (see generally People v Spikes, 28 AD3d 1101,
1102, lv denied 7 NY3d 818). The waiver by defendant of the right to
appeal does not bar his contention in his main brief in appeal No. 2
with respect to the severity of the sentence because “the record
establishes that defendant waived his right to appeal before [Supreme]
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KA 10-00019
Court advised him of the potential periods of imprisonment that could
be imposed” (People v Mingo, 38 AD3d 1270, 1271). Nevertheless, we
conclude that the sentence is not unduly harsh or severe.
Defendant also contends in his main brief in appeal No. 2 that
the court erred in fixing the duration of the orders of protection
imposed upon the conviction of reckless endangerment in the first
degree, a class D felony. Although defendant failed to preserve that
contention for our review (see People v Nieves, 2 NY3d 310, 315-317),
we nevertheless exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). As
the People correctly concede, the orders of protection issued in favor
of the victims of that crime exceed the maximum legal duration of the
applicable version of CPL 530.13 (4) (ii) in effect at the time of
sentencing, i.e., when the judgment was rendered. That version
provided that the duration of an order of protection entered in
connection with a felony conviction shall not exceed “three years from
the date of the expiration of the maximum term of an indeterminate . .
. sentence of imprisonment actually imposed” (id.). Moreover, the
duration may not be applied to the aggregate sentence but, rather,
“ ‘must be added to the maximum term of the sentence imposed’ ” for
the count upon which the order of protection was based (People v
Harris, 285 AD2d 980). Thus, the orders of protection at issue may
not exceed three years from the expiration of the seven-year maximum
term of the indeterminate sentence imposed upon defendant’s conviction
of reckless endangerment in the first degree. We therefore modify the
judgment in appeal No. 2 by amending the orders of protection, and we
remit the matter to Supreme Court to determine the jail time credit to
which defendant is entitled and to specify in each order of protection
an expiration date in accordance with the version of CPL 530.13
(former [4] [ii]) in effect when the judgment was rendered on October
28, 2009.
We reject defendant’s further contention in his pro se
supplemental brief that the court erred in refusing to allow him to
substitute assigned counsel. “ ‘The decision to allow a defendant to
substitute counsel is largely within the discretion’ ” of the court to
which the application is made (People v Kobza, 66 AD3d 1387, 1388-
1389, lv denied 13 NY3d 939). Here, there was no abuse of discretion
inasmuch as defendant failed to show the requisite “good cause for
substitution” (People v Sides, 75 NY2d 822, 824). Contrary to
defendant’s implicit contention, he “did not establish that there was
a complete breakdown in communication with h[is] attorney” (People v
Botting, 8 AD3d 1064, 1065, lv denied 3 NY3d 671). Finally, to the
extent that defendant’s contention in his pro se supplemental brief
that he was denied effective assistance of counsel survives his guilty
plea and valid waiver of the right to appeal in appeal Nos. 1 and 2
(see People v Lewandowski, 82 AD3d 1602, 1602-1603), we conclude that
his contention lacks merit (see generally People v Ford, 86 NY2d 397,
404).
Entered: June 17, 2011 Patricia L. Morgan
Clerk of the Court