| People v McClam |
| 2009 NY Slip Op 02385 [60 AD3d 968] |
| March 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HarryMcClam, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Ilisa T.Fleischer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese,J.), rendered September 28, 2006, convicting him of assault in the second degree and resistingarrest, upon his plea of guilty, and imposing sentence The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were to suppressstatements he made to law enforcement officials and to suppress identification testimony.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, the plea is vacated, the denial of those branches of the defendant's omnibus motionwhich were to suppress statements he made to law enforcement officials and to suppressidentification testimony is vacated, and the matter is remitted to the Supreme Court, NassauCounty, for further proceedings consistent herewith.
The defendant argues, inter alia, that the Supreme Court improvidently exercised itsdiscretion in denying his request for new assigned counsel.
The right of an indigent criminal defendant to the services of a court-appointed lawyer doesnot encompass a right to appointment of successive lawyers at the defendant's option (seePeople v Linares, 2 NY3d 507 [2004]; People v Sides, 75 NY2d 822 [1990];People v Stevenson, 36 AD3d 634 [2007]). Nevertheless, the [*2]right to be represented by counsel of one's own choosing is avalued one, and a defendant may be entitled to new assigned counsel upon showing "good causefor substitution" (People v Linares, 2 NY3d at 511), such as a conflict of interest or otherirreconcilable conflict with counsel (id. at 511; see People v Sides, 75 NY2d 822[1990]; People v Stevenson, 36 AD3d 634 [2007]). However, such requests may not beused merely to delay the orderly administration of justice, and while they are not to be grantedcasually, the trial court, in exercising its discretion, must carefully evaluate seemingly seriousrequests in order to ascertain whether there is indeed good cause for substitution (see Peoplev Linares, 2 NY3d 507 [2004]; People v Sides, 75 NY2d 822 [1990]; People vStevenson, 36 AD3d 634 [2007]). This is an ongoing duty (see People v Linares, 2NY3d 507 [2004]). In determining whether good cause exists, a trial court must consider thetiming of the defendant's request, its effect on the progress of the case, and whether presentcounsel will likely provide the defendant with meaningful assistance (id. at 510;People v Medina, 44 NY2d 199, 208 [1978]; see People v Stevenson, 36 AD3d634 [2007]). Good cause determinations are necessarily case-specific and, therefore, fall withinthe discretion of the trial court (see People v Linares, 2 NY3d at 510).
Here, the conflict between the defendant and his assigned counsel began prior to the pretrialsuppression hearings, when the defendant first complained about the performance of counsel andrequested new assigned counsel. After limited inquiry, during which defense counsel refuted thedefendant's contentions concerning the cause of the conflict, the court denied the request, notingthat they were on the "eve of the hearing" and that if the defendant "still [felt] that way at thetime of trial," the court would hear his request at that time. There followed a series of requestsfor new assigned counsel, which resulted in several contentious exchanges between thedefendant and the court and the defendant's removal from the courtroom on more than oneoccasion.
Just prior to jury selection, the court denied the defendant's renewed request for newassigned counsel, noting that a Sandoval application (People v Sandoval, 34NY2d 371 [1974]) had already been determined and that the "trial [had] technically [begun]."
The relationship between the defendant and counsel reached its nadir during the second dayof jury selection, when counsel admitted that he had threatened to punch the defendant in theface in open court during a recess, and stated that the defendant was the absolute worst client hehad ever represented, that he did not want to represent the defendant and could not represent himin good faith, and that if his request to be relieved were denied he would seek the intervention ofthe Administrative Judge, even if it meant being held in contempt. The request was denied. Thenext day, the defendant pleaded guilty. Prior to the plea, defense counsel represented that he andthe defendant had reconciled. However, the defendant, when asked to confirm the representation,initially refused to speak. When pressed by the court, the defendant stated, "I heard you. Whatcan I say?" Thereafter, the defendant, without explanation, and without question or objectionfrom his counsel, insisted on pleading guilty to the charge of resisting arrest, even though thatwas not a requirement of his plea bargain. During the plea allocution, the defendant was notasked, as is typical, whether he was satisfied with the performance of counsel.
On this record, we conclude that defendant's right to counsel was not adequately protected.Rather, in response to the defendant's seemingly serious requests for a substitution of assignedcounsel, the court failed to meets its ongoing duty to make inquiries sufficient to determinewhether there was good cause for the requested substitution (see People v Brown, 305AD2d 422 [2003]). Thus, reversal is warranted. Further, on the record presented, the mattershould be restored to pre-suppression-hearing status.[*3]
In light of our determination, the defendant's remainingcontentions need not be reached. Prudenti, P.J., Ritter, Santucci and Covello, JJ., concur.