| People v Branham |
| 2009 NY Slip Op 01171 [59 AD3d 244] |
| February 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ToddBranham, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 29, 2007,convicting defendant, upon his plea of guilty, of four counts of robbery in the first degree, andsentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life,unanimously reversed, on the law, the plea vacated, and the matter remanded for furtherproceedings.
The court improperly denied defendant's request for substitution of counsel without givingdefendant any opportunity to explain why he wanted a different lawyer. At the outset of asuppression hearing, defendant requested to address the court, which refused to permit him to beheard. Defendant managed to advise the court of his belief that he and his attorney had a"conflict of interest," but the court stated it was "not taking that application." Thus the courtevinced its understanding that defendant was asking for new counsel, but expressly denied thatapplication and refused to permit defendant to provide any details. Even though the request fornew counsel may well have been a delaying tactic, and even though the "conflict" may well havebeen defendant's unjustified dissatisfaction with his attorney, the court had no basis to deny theapplication without hearing any explanation (see People v Sides, 75 NY2d 822 [1990]; People v Rodriguez, 46 AD3d396 [2007], lv denied 10 NY3d 844 [2008]; People v Bryan, 31 AD3d 295 [2006]).
Moreover, at sentencing, the court should have made further inquiry before denyingdefendant's pro se motion to withdraw his plea. Although the motion consisted of boilerplate, itcontained an allegation that the plea was involuntary because defendant was unaware he had avalid defense to the charges. Under the circumstances of the case, this claim had sufficientsubstance to at least warrant some inquiry (compare People v Frederick, 45 NY2d 520[1978]). Although defendant pleaded guilty to four counts of first-degree robbery under PenalLaw § 160.15 (4), his plea allocution raised an affirmative defense under that section whenhe stated that he had simulated a firearm (see People v Pariante, 283 AD2d 345 [2001]).In addition, use of a simulated firearm was apparently the People's theory of the case, asindicated by the suppression [*2]hearing testimony. Finally, wealso note that defense counsel inappropriately disparaged defendant's plea withdrawal motion(People v Vasquez, 70 NY2d 1 [1987]). Concur—Friedman, J.P., Gonzalez,Buckley and Renwick, JJ.