People v. Beaubrun

2017 NY Slip Op 9146, 156 A.D.3d 896, 65 N.Y.S.3d 755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2017
• Docket: 2016-07064
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered June 22, 2016, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was deprived of his right to the effective assistance of counsel when, at sentencing, his attorney took a position adverse to him with respect to his pro se application to withdraw his plea of guilty. The record demonstrates, however, that the Supreme Court denied the application before counsel made his statements (see People v Kosse, 94 AD3d 908 [2012]; People v Rogers, 43 AD3d 1189 [2007]). Counsel’s subsequent statements related to matters that were evident from the record before the court and could not have affected the court’s determination denying the defendant’s application (see People v Rogers, 43 AD3d at 1189-1190; People v Lattimore, 5 AD3d 399, 400 [2004]; People v Caple, 279 AD2d 635, 636 [2001]).

The defendant’s valid waiver of his right to appeal precludes review of his remaining contention (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 257 [2006]; People v Thomas, 139 AD3d 986, 987 [2016]).

Balkin, J.P., Miller, Duffy, LaSalle and Brathwaite Nelson, JJ., concur.