People v Beaubrun

People v Beaubrun 2017 NY Slip Op 09146 Decided on December 27, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2016-07064
(Ind. No. 1206/15)

[*1]The People of the State of New York, respondent,

v

Evens Beaubrun, appellant.

Michael A. Fiechter, Bellmore, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Kevin King and Brian Witthuhn of counsel), for respondent.

DECISION & ORDER

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; People v Rogers, 43 AD3d 1189). 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; People v Caple, 279 AD2d 635, 636).

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

BALKIN, J.P., MILLER, DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court