Opinion
158
February 5, 2002.
Judgment, Supreme Court, New York County (Harold Beeler, J.), rendered August 11, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of 6 years to life, unanimously affirmed.
DAVID M. COHN, for respondent.
RICHARD JOSELSON, for defendant-appellant.
Before: Williams, J.P., Andrias, Rosenberger, Buckley, JJ.
Defendant's application to withdraw his guilty plea was properly denied after a suitable inquiry in which defendant was afforded a sufficient opportunity to be heard. The court was fully familiar with the case, including the thorough plea allocution, and was able to make an informed determination (see, People v. Frederick, 45 N.Y.2d 520, 525). The record establishes that defendant's plea was knowing, intelligent and voluntary. Although defendant complains that his plea was coerced by the People's refusal to permit his codefendants to plead guilty unless defendant did likewise, the court properly found that defendant's plea met the constitutional standards for this type of arrangement (see,People v. Fiumefreddo, 82 N.Y.2d 536).
Defendant received meaningful, non-conflicted representation at all stages of the case (see, People v. Benevento, 91 N.Y.2d 708, 713-714; People v. Ford, 86 N.Y.2d 397, 404; see also, Cuyler v. Sullivan, 446 U.S. 335, 348-350). Defense counsel argued in favor of the plea withdrawal motion and did not became a witness against defendant or take any other action contrary to his interests (compare, People v. Rozell, 20 N.Y.2d 712). Defendant was properly represented by his own counsel at the taking of the plea, and his claim that a codefendant's attorney improperly assumed the role of defendant's legal advisor during a pre-pleading joint strategy discussion involving all the defendants and their attorneys is unfounded.
Defendant's contention that he was improperly sentenced as a second felony offender is unpreserved and we decline to reach it in the interest of justice. Were we to reach the issue, we would find the sentence proper as it was based on a Federal conviction of conspiracy to sell cocaine, and the New York requirement of an overt act, which is not found in Federal conspiracy law, is an evidentiary requirement concerning the manner in which conspiracy must be established, rather than being an element of the crime (People v. Miller, 284 A.D.2d 724).
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.