| People v Rolfe |
| 2011 NY Slip Op 02973 [83 AD3d 1219] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Rolfe,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered November 23, 2009, convicting defendant upon his plea of guilty of the crime ofcriminal contempt in the first degree.
After violating an order of protection, defendant was indicted on charges of criminalcontempt in the first degree, grand larceny in the fourth degree, and endangering the welfare of achild. A few days prior to the date scheduled for commencement of trial, defendant's counselwrote to County Court requesting the assignment of new counsel because of a "completebreakdown in communication" between defendant and himself. The court denied the request onthe grounds that no basis for such relief had been stated and because of the proximity of trial.Defendant subsequently pleaded guilty to criminal contempt in the first degree in satisfaction ofall charges. He waived his right to appeal and was sentenced to a prison term of 1½ to 3years, to run concurrently with any sentence imposed in a separate criminal action then pendingagainst him (People v Rolfe, 83 AD3d 1217 [2011] [decided herewith]). Defendantappeals.
Defendant's sole contention is that his constitutional right to be represented by the counsel ofhis choice was violated by County Court's alleged failure to make an adequate inquiry into thebasis of the request for substitute counsel (see People v Sides, 75 NY2d 822, 824 [1990];People v Brown, 62 AD3d1089, 1092 [2009], lv denied 13 NY3d 742 [2009]). This claim [*2]survives defendant's waiver of the right to appeal only to the extentthat it implicates the voluntariness of his plea (see People v Pump, 67 AD3d 1041, 1041 [2009], lv denied13 NY3d 941 [2010]; People vWilliams, 6 AD3d 746, 747 [2004], lv denied 3 NY3d 650 [2004]). This claimis further unpreserved, as defendant failed to move to withdraw his plea (see CPL 220.60[3]) or to vacate the judgment of conviction (see CPL 440.10; People v Lopez, 71NY2d 662, 665 [1988]), and, in any event, it is without merit.
Whether good cause exists to grant an indigent defendant's request for the appointment ofsubstitute counsel depends on, among other things, " 'the timing of the defendant's request, itseffect on the progress of the case and whether present counsel will likely provide the defendantwith meaningful assistance' " (People vMalcolm, 74 AD3d 1483, 1486 [2010], lv denied 15 NY3d 954 [2010], quotingPeople v Linares, 2 NY3d 507,510 [2004]). Here, defendant's counsel, rather than defendant himself, requested the substitution,without indicating that he was acting at defendant's instruction (compare People vMalcolm, 74 AD3d at 1487; People v Smith, 231 AD2d 815, 816 [1996]). Defendantnever directly expressed dissatisfaction with his counsel; he did not object to the denial of thesubstitution request and, during his subsequent plea colloquy, indicated that he was satisfied withthe representation. Finally, any temporary difficulties between defendant and his counsel wereapparently resolved, as counsel was able to obtain an advantageous plea agreement and continuedto represent defendant in the companion case. Accordingly, were this issue properly before us,we would find that rejection of the request was not an abuse of discretion (see People vLinares, 2 NY3d at 510-511; People v Brown, 62 AD3d at 1092).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.