Opinion
2016–07064 Ind. No. 1206/15
12-27-2017
The PEOPLE, etc., respondent, v. Evens BEAUBRUN, appellant.
Michael A. Fiechter, Bellmore, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Kevin King and Brian Witthuhn of counsel), for respondent.
Michael A. Fiechter, Bellmore, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Kevin King and Brian Witthuhn of counsel), for respondent.
RUTH C. BALKIN, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal 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 A.D.3d 908, 941 N.Y.S.2d 847 ; People v. Rogers, 43 A.D.3d 1189, 842 N.Y.S.2d 584 ). 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 A.D.3d at 1189–1190, 842 N.Y.S.2d 584 ; People v. Lattimore, 5 A.D.3d 399, 400, 772 N.Y.S.2d 537 ; People v. Caple, 279 A.D.2d 635, 636, 720 N.Y.S.2d 166 ).
The defendant's valid waiver of his right to appeal precludes review of his remaining contention (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Thomas, 139 A.D.3d 986, 987, 31 N.Y.S.3d 591 ).
BALKIN, J.P., MILLER, DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.