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New York Appellate Court Affirms Sentence for Defendant Claiming Ineffective Counsel in Drug Possession Case


(The People of the State of New York v. M.M.)

The defendant filed this appeal regarding his guilty plea of criminal possession of a controlled substance in the 5th degree. The court initially agreed with the defendant that his waiver of an appeal was invalid.

The defendant argues that the court failed to assign him new counsel at his sentencing hearing. The court disagrees. The court states that this argument is invalid because the defendant didn’t make an adequate case asking for new counsel. Therefore, the court didn’t err in failing to conduct an inquiry whether good cause was shown to substitute counsel (People v Mathews 142 AD3d 1354, People v Singletury 63 AD3d 1654, 1655 [4th Dept. 2009].

Even if the defendant did make the proper argument, the court concludes that the defendant was afforded the opportunity to express his objections concerning defense counsel and the court determined at that time that his argument was without merit (People v Porto 16 NY3d 93, 101-102, People v Bethany 144 AD3d 1666).

Despite the defendant’s related arguments, the court concludes that the sentence had been set forth at the time of the plea, and the defendant was aware of the possibility of a maximum sentence. Counsel was not adversarial to the defendant. Defense counsel was only repeating the record. (People v Alverez 143 AD3d 543, People v Burgos 298 AD2d 190, People v Benitz 290 AD2d 363.

As to the contention of the defendant that his sentencing could be interpreted as a motion to withdraw his plea, the court clearly rejected this argument when it was determined that his arguments were not reflected in the record (People v Lewichi 118 AD3d 1328, 1329 [4th Dept. 2014]. The court made its’ decision before the defense counsel made a comment regarding the voluntary nature of his plea which was averse to MM (People v Mitchell 21 NY3d 964, 966-967 [2013]. The court concludes that according to the record, the court’s rejection of any motion to withdraw wasn’t caused by the defense counsel’s comments during the sentencing hearing (People v Carter Doucette 124 AD3d 1323, People v Homes 145 AD3d 641, 642 [1st Dept. 2016].

The court feels that the sentence isn’t unreasonably severe or harsh. The court declines the defendant’s request to reduce the sentence in the interest of justice (CPL 470.15 [6][b]).

The Uniform Sentence and Commitment form incorrectly states that the defendant is a second felony offender. This should be corrected to show that he was sentenced as a second felony drug offender who was previously convicted of a violent felony offense (People v Oberdorf 136 AD 1291, 1292 [4th Dept. 2016].

If you have been charged with a crime, it is important to promptly consult with experienced legal counsel to ensure that your legal interests are protected. Contact the law offices of Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you throughout the New York area, including locations in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Nassau County, Suffolk County, and Westchester County. Call them for a free consultation at 1-800-NYNYLAW.

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