People v Lanier

2018 NY Slip Op 00864 [158 AD3d 895]

February 8, 2018

Appellate Division, Third Department

As corrected through Wednesday, March 28, 2018

[*1]

The People of the State of New York,Respondent, v Emmett Lanier, Appellant.

Paul R. Corradini, Elmira, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jordan J. Yorke of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered June 26, 2015, convicting defendant upon his plea of guilty of the crime of promotingprison contraband in the first degree.

In February 2015, defendant, a prison inmate, was charged in an indictment with promotingprison contraband in the first degree.^[FN*] The charge stemmed from his possession of a51/2-inch by 11/8-inch plexiglass shank wrapped with masking tapeon one end as a handle and sharpened to a point on the other end. At his arraignment, defendantinformed County Court that he was dissatisfied with counsel and requested a new attorney.During the ensuing colloquy, County Court entertained defendant's reasons for requesting newcounsel and ultimately denied defendant's request. Thereafter, pursuant to a plea agreement,defendant pleaded guilty to promoting prison contraband in the first degree in exchange for asentencing commitment from County Court. Consistent with the terms of the plea agreement andthat commitment, County [*2]Court sentenced defendant, as asecond felony offender, to a prison term of 2 to 4 years. Defendant now appeals.

We affirm. We find no merit to defendant's contention that County Court failed to conduct anadequate inquiry before denying his request for substitute counsel. "While a criminal defendant isentitled to the effective assistance of counsel and to the assignment of counsel if indigent, thisdoes not encompass a right to appointment of successive lawyers at defendant's option" (People v Gutek, 151 AD3d 1281,1282 [2017] [internal quotation marks and citations omitted]; see People v Sides, 75NY2d 822, 824 [1990]; People vBrown, 154 AD3d 1004, 1005 [2017]). "[A] defendant may be entitled to new assignedcounsel upon showing good cause for a substitution, such as a conflict of interest or otherirreconcilable conflict with counsel" (People v Brown, 154 AD3d at 1005 [internalquotation marks and citations omitted]; see People v Sides, 75 NY2d at 824; People vGutek, 151 AD3d at 1282). " 'Good cause determinations are necessarilycase-specific and therefore fall within the discretion of the trial court' " (People v Smith, 18 NY3d 588, 592[2012], quoting People v Linares, 2NY3d 507, 510 [2004]; accord People v Gutek, 151 AD3d at 1282). "Whenassessing whether an appointment of new counsel is warranted, the court may consider a varietyof factors, including whether present counsel is reasonably likely to afford a defendant effectiveassistance" (People v Gutek, 151 AD3d at 1282 [internal quotation marks and citationsomitted]; see People v Smith, 18 NY3d at 592; People v Brown, 154 AD3d at1005).

Here, defendant's request for substitute counsel was predicated upon his claim that hisassigned counsel failed to adequately protect his constitutional rights insofar as double jeopardypurportedly attached when the original indictment in this matter was dismissed. In response to hisrequest, County Court afforded defendant an opportunity to articulate his precise concerns aboutdefense counsel, and, after engaging in a colloquy with defendant regarding those concerns,explained to him that his counsel was effective in obtaining dismissal of a previous indictment,that defendant was subsequently afforded his right to testify before the grand jury on the currentindictment and that no double jeopardy issue existed. Even assuming, as defendant contends, thathe, and not his assigned counsel, filed the CPL 190.50 motion that resulted in the dismissal of theoriginal indictment in this case, defendant nevertheless failed to demonstrate how counsel wasineffective (cf. People v Cherry, 149AD3d 1346, 1346 [2017], lv denied 29 NY3d 1124 [2017]; People v Wright, 5 AD3d 873,874-875 [2004], lv denied 3 NY3d 651 [2004]) or to otherwise articulate a specificconflict of interest or actual irreconcilable conflict with counsel that affected counsel'srepresentation so as to warrant assignment of new counsel (see People v Smith, 18 NY3dat 593; People v Gutek, 151 AD3d at 1282). Accordingly, we find that, under thecircumstances presented here, County Court's denial of defendant's request for substitution ofcounsel was a provident exercise of its discretion (see People v Smith, 18 NY3d at 593;People v Linares, 2 NY3d at 511).

Garry, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The record reflects that, althougha prior indictment in this matter was dismissed because it was obtained in violation ofdefendant's statutory right to testify before the grand jury (see CPL 190.50 [5] [a]), hewas subsequently afforded the right to testify before the grand jury on the current indictment.