People v. Clute

226 A.D.2d 824, 840 N.Y.S.2d 826, 1996 N.Y. App. Div. LEXIS 3700

Opinion

Mercure, J.

Appeal from a judgment of the County Court of Schenectady County (Reilly, Jr., J.), rendered June 3, 1994, convicting defendant upon his plea of guilty of the crimes of murder in the second degree and burglary in the third degree.

In accordance with a plea bargain, defendant disposed of two separate indictments with pleas of guilty to burglary in the third degree and murder in the second degree and was sentenced to consecutive prison terms aggregating 20 years to life. The sole contention advanced on appeal is that County Court erred in refusing defendant’s request for an order disqualifying the Schenectady County District Attorney. However, by pleading guilty, defendant waived his right to appellate review of this nonjurisdictional claim (see, People v Cole, 152 AD2d 851, 853, lv denied 74 NY2d 895; People v Bump, 103 AD2d 974). Moreover, the assertion that the District Attorney violated various provisions of the Code of Professional Responsibility in his comments to the press, even if substantiated, did not satisfy defendant’s burden of showing that removal of the public prosecutor was required to protect him from "actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (Matter of Schumer v Holtzman, 60 NY2d 46, 55; see, People v Early, 173 AD2d 884, 885, lv denied 79 NY2d 1000).

Mikoll, J. P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.