| People v Wall |
| 2008 NY Slip Op 09189 [56 AD3d 361] |
| November 20, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Courtney Wall, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., at calendar calls;Edward J. McLaughlin, J., at plea and sentence), rendered November 18, 2005, convictingdefendant of burglary in the second degree and bail jumping in the second degree, and sentencinghim to concurrent terms of six years and 1
Defendant was not deprived of his right to counsel at any stage of the proceedings. He wasrepresented at all times by competent retained counsel. At several calendar appearances,defendant expressed his desire to retain different counsel, but did not advance any legitimatecomplaints about his representation. In particular, his complaint about the fact that the firm hehired supplied several different attorneys to cover calendar appearances was meritless, since thereis no indication that any of these attorneys was unprepared to handle the matter at hand. In anyevent, the court accorded defendant repeated opportunities to hire new counsel (cf. People v Wilburn, 40 AD3d508, 509 [2007], lv denied 9 NY3d 883 [2007]), but he failed to do so.
It was not until the eve of trial that defendant, through his retained counsel, first requestedthe assignment of counsel pursuant to article 18-b of the County Law. Under the circumstancespresented, the calendar court properly denied that application without inquiring into defendant'sfinances. Defendant never attempted to make an adequate showing of entitlement to assignedcounsel (see CPLR 1101 [a]), beyond conclusory assertions. Discharging retainedcounsel does not necessarily or presumptively render a client "indigent," especially since thedeparting lawyer is required to "refund promptly any part of a fee paid in advance that has notbeen earned." (Code of Professional Responsibility DR 2-110 [a] [3] [22 NYCRR 1200.15 (a)(3)].) Furthermore, defendant did not advance any valid reason for rejecting his retainedattorney's services, and, in particular, for a last-minute substitution that would have createdundue delay (see People v Arroyave, 49 NY2d 264, 271 [1980]).
Defendant then chose to accept a plea offer, and the record establishes that the plea wasentered voluntarily, with the effective assistance of the retained attorney he had sought todischarge (see People v Ford, 86 NY2d 397, 404 [1995]). The sentencing court properly[*2]exercised its discretion when it denied defendant's meritlessmotion to withdraw his plea and properly declined to assign new counsel for purposes of thatapplication (see e.g. People vRivera, 34 AD3d 240, 241 [2006], lv denied 8 NY3d 926 [2007]; People v Quintana, 15 AD3d 299[2005], lv denied 4 NY3d 856 [2005]). The purported conflicts of interest with hisretained counsel were of defendant's own making (see People v Linares, 2 NY3d 507, 511-512 [2004]; People v Walton, 14 AD3d 419[2005], lv denied 5 NY3d 796 [2005]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Sweeny,Catterson and DeGrasse, JJ.