| People v Rodriguez |
| 2007 NY Slip Op 10053 [46 AD3d 396] |
| December 20, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Rodriguez, Appellant. |
—[*1] William Rodriguez, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Rena Paul of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., at summary denial ofMapp/Dunaway motion; William A. Wetzel, J., at jury trial and sentence),rendered April 25, 2005, convicting defendant of robbery in the first and second degrees (threecounts each), burglary in the first and second degrees and criminal possession of a weapon in thesecond and third degrees, and sentencing him to an aggregate term of 20 years, unanimouslyreversed, on the law, and the matter remanded for a new trial.
Defendant is entitled to a new trial because the court improperly denied his request forsubstitution of counsel without conducting an inquiry or permitting defendant to explain why hewanted a different lawyer. Shortly before jury selection, defendant interrupted a discussion ofdiscovery matters by stating "I don't want this lawyer." The trial court immediately admonisheddefendant for interrupting and emphatically informed him there would be no reassignment ofcounsel, citing the facts that defendant had already had two such substitutions and that the casewas ready for trial. The court stated it would not discuss this subject further, and concluded byasking defendant if he had "any questions?"
The timing of defendant's request and his history of changing attorneys were importantconsiderations, and the request may well have been a frivolous delaying tactic. Nevertheless, thecourt had no basis to completely cut off the discussion without hearing any explanation (seePeople v Sides, 75 NY2d 822 [1990]; People v Bryan, 31 AD3d 295 [2006]). Indeed, the court had at aminimum the obligation to determine whether defendant had any valid reason to request a newattorney. The court clearly understood defendant's interruption to be an application for newcounsel and unequivocally denied it. Under these circumstances, defendant was under noobligation to pursue his application any further (see People v Mezon, 80 NY2d 155, 161[1992]). Finally, when the court asked defendant if he had any questions, this did not, given thecontext, offer defendant an opportunity to elaborate on his request for new counsel.
On remand, defendant is not entitled to a Mapp/Dunaway hearing. Before themotion court, defendant failed to raise a factual issue regarding the legality of his arrest. Onappeal, [*2]defendant asserts that the court improperly denied themotion on the ground of lack of standing (see People v Burton, 6 NY3d 584 [2006]). However, the motioncourt's decision did not articulate that basis, and the People did not oppose the motion on thatground.
The fact that defense counsel did not move to reopen the Wade hearing based onevidence developed at trial did not deprive defendant of effective assistance. We express noopinion on the merits of any CPL 710.40 (4) application that might be made prior to retrial.
To the extent that defendant's pro se supplemental brief can be interpreted as challenging thesufficiency and weight of the evidence or the validity of the indictment, those claims are withoutmerit. Our remand for a new trial renders his other pro se claims academic.Concur—Lippman, P.J., Marlow, Williams and Gonzalez, JJ.