MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered August 29, 2019, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree, burglary in the second degree, attempted robbery in the first degree and attempted robbery in the second degree (two counts).
Following an unsuccessful attempt to steal marihuana from the occupants of a residence in Clinton County, defendant was indicted and charged with burglary in the first degree, burglary in the second degree, attempted robbery in the first degree and attempted robbery in the second degree (two counts). During the course of the incident, defendant was stabbed by one of the victims. After initially rejecting the Peoples plea offers, defendant pleaded guilty to the entire indictment without a sentencing commitment from County Court. When the parties returned for sentencing, defendant asserted that he had been denied the effective assistance of counsel and requested a new attorney. County Court denied defendants request for substitute counsel and sentenced defendant to a prison term of six years followed by five years of postrelease supervision upon his conviction of burglary in the first degree and to lesser determinate terms of imprisonment upon the remaining convictions – all sentences to be served concurrently. This appeal ensued.
Defendants challenge to the voluntariness of his plea is premised upon defense counsels alleged failure to turn over certain discovery materials – specifically, supporting depositions authored by two police detectives that, in turn, indicated that the victims identified someone other than defendant as the likely perpetrator of the crimes. Such claim, however, is unpreserved for our review in the absence of an appropriate postallocution motion, despite defendant having an opportunity to do so prior to sentencing (see People v. Dickerson, 198 A.D.3d 1190, 1192–1193, 156 N.Y.S.3d 526 [2021]; People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020]). The narrow exception to the preservation requirement was not implicated here, as defendant did not make any statements during the plea colloquy that negated an element of the charged crimes, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [2021]; People v. Downs, 194 A.D.3d 1118, 1119, 146 N.Y.S.3d 695 [2021], lv denied 37 N.Y.3d 971, 150 N.Y.S.3d 694, 172 N.E.3d 806 [2021]).
Nor are we persuaded that defendants statements at the time of sentencing were sufficient to trigger the exception to the preservation requirement, thereby imposing a duty of further inquiry upon County Court. When he appeared for sentencing, defendant advised County Court that, upon reviewing certain unspecified discovery materials, he had “seen some things ․ that [were not] right.” Defendant did not elaborate as to the substance of the alleged irregularities, advise the court that the materials in question contained potentially exculpatory evidence, indicate that he wished to withdraw his plea, claim that he was actually innocent or otherwise make any statements that were inconsistent with his prior sworn admissions of guilt. Contrary to defendants assertion, his generalized comments regarding the discovery materials did not “raise a legitimate question about the voluntariness of [his] plea” (People v. Phillip, 200 A.D.3d 1108, 1109, 157 N.Y.S.3d 312 [2021] [internal quotation marks and citation omitted]) and, hence, did not impose a duty of further inquiry upon County Court (compare People v. Skyers, 173 A.D.3d 1565, 1565–1566, 104 N.Y.S.3d 387 [2019]; People v. Chin, 160 A.D.3d 1038, 1039–1040, 73 N.Y.S.3d 685 [2018]).
To the extent that defendants ineffective assistance of counsel claim impacts upon the voluntariness of his plea, it is similarly unpreserved for our review (see People v. Vivona, 199 A.D.3d 1165, 1166, 156 N.Y.S.3d 602 [2021]; People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020]), and we again are unpersuaded – for the reasons previously discussed – that the narrow exception to the preservation requirement was triggered (see People v. Nack, 200 A.D.3d at 1198, 157 N.Y.S.3d 590; People v. Downs, 194 A.D.3d at 1119, 146 N.Y.S.3d 695). The balance of defendants ineffective assistance of counsel claim, including counsels asserted failure to, among other things, properly investigate defendants case, obtain his medical records, explore whether he was impaired when he made incriminating statements to law enforcement and/or consult with him on a regular basis, involve matters outside of the record and, as such, are more properly the subject of a CPL article 440 motion (see People v. Weidenheimer, 181 A.D.3d at 1097, 122 N.Y.S.3d 149; People v. White, 172 A.D.3d 1822, 1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019]).
Defendant next contends that County Court erred in denying his request for new counsel based upon a conflict of interest. As noted previously, defendant asked for new counsel at the time of sentencing due to counsels alleged failure to turn over certain then-unspecified discovery materials. At County Courts behest, defense counsel then outlined the course of his representation of defendant, defended his efforts on defendants behalf and asked that the court deny defendants request for new counsel. Defendant contends that, in so doing, defense counsel took a position adverse to defendant and, hence, County Court was compelled to adjourn sentencing and assign new counsel.
Although counsel may be said to take a position adverse to his or her client by stating that the clients motion lacks merit, he or she “does not create an actual conflict merely by outlining his [or her] efforts on [the] clients behalf ․ and defending his [or her] performance” (People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [internal quotation marks, emphasis and citations omitted]; compare People v. Phillip, 200 A.D.3d at 1109–1110, 157 N.Y.S.3d 312). In the context of recounting his history of representing defendant, defense counsel did not affirmatively state that defendants request for new counsel lacked a factual or legal basis (compare People v. Thaxton, 191 A.D.3d 1166, 1168–1169, 142 N.Y.S.3d 245 [2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 [2021], with People v. Phillip, 200 A.D.3d at 1109–1110, 157 N.Y.S.3d 312). Even assuming, without deciding, that counsel – by asking County Court to deny defendants request – “strayed beyond a factual explanation of his efforts on [defendants] behalf” (People v. Washington, 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853), we are not persuaded that counsels comments created an actual conflict of interest that, in turn, warranted the assignment of new counsel for purposes of sentencing (see People v. Thaxton, 191 A.D.3d at 1168, 142 N.Y.S.3d 245). Indeed, defense counsel – noting that the People had recommended a sentencing cap of seven years – successfully advocated for leniency at the time of sentencing, with County Court sentencing defendant to a prison term of six years upon his conviction of burglary in the first degree and to lesser determinate terms of imprisonment on the remaining crimes.
As a final matter, the People concede that the crimes of conviction were committed through a single act. Hence, once County Court imposed a fine upon defendants conviction of burglary in the first degree, it erred in imposing separate fines upon each of the remaining crimes (see Penal Law § 80.15; see generally People v. Regatuso, 140 A.D.3d 1750, 1751, 33 N.Y.S.3d 645 [2016]). Accordingly, the judgment of conviction is modified to that extent.
ORDERED that the judgment is modified, on the law, by reducing the total fine imposed to $1,000, and, as so modified, affirmed.
Fisher, J.
Garry, P.J., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.