| People v Orminski |
| 2013 NY Slip Op 05240 [108 AD3d 864] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vEdward Orminski, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered December 22, 2010, convicting defendant upon his plea of guilty of thecrime of grand larceny in the third degree.
In satisfaction of a multicount indictment against defendant and his wife, defendantentered an Alford plea to one count of grand larceny in the third degree, waivedhis right to appeal and was placed on interim probation. According to the plea agreement,if he was successful on interim probation and made the required restitution payments,County Court would sentence him to no more than six months in jail and five years ofprobation. If he failed to make the required payments or violated other conditions ofprobation, the court could sentence defendant up to the maximum of 2
County Court did not err in denying defendant's request to adjourn sentencing. [*2]Although courts, to protect the constitutional rights ofdefendants regarding representation, must provide a reasonable opportunity fordefendants to select and retain counsel of their own choosing (see People vArroyave, 49 NY2d 264, 270 [1980]; People v Sapienza, 75 AD3d 768, 770 [2010]), "a requestto change counsel previously retained or assigned must be addressed to the [trial court's]discretion to insure that the defendant's purported exercise of the right does not serve todelay or obstruct the criminal proceedings" (People v Tineo, 64 NY2d 531, 536[1985]; see People vEberhart, 48 AD3d 898, 900 [2008], lv denied 10 NY3d 958 [2008]).Here, the court had previously granted defendant adjournments to retain new counseland, when granting the last adjournment of three weeks, advised defendant thatsentencing would take place on a certain date regardless of whether defendant wassuccessful in retaining new counsel; the court advised defendant that he could representhimself or that assigned counsel—whose office was still counsel ofrecord—could represent defendant, but sentencing would proceed. On theappointed sentencing date, defendant sought a further adjournment and stated that hisfamily had contacted several attorneys. The court noted that no attorney had filed asubstitution of counsel or informed the court that he or she had been retained to representdefendant. Accordingly, County Court did not abuse its discretion in denying defendant'srequest for a further adjournment (see People v Sapienza, 75 AD3d at 770-771;compare People v Bullock,75 AD3d 1148, 1151 [2010]).
When setting the amount of restitution, County Court was not required to considerdefendant's ability to pay, as his sentence included a period of incarceration and therestitution was not then being imposed as a condition of probation (see People v Henry, 64 AD3d804, 807 [2009], lv denied 13 NY3d 860 [2009]; see also People v Boone, 101AD3d 1358, 1358-1359 [2012], lv denied 20 NY3d 1096 [2013];compare Penal Law § 60.27 with Penal Law § 65.10 [2][g]). Defendant is precluded from arguing that his sentence is harsh and excessive, givenhis valid waiver of appeal (seePeople v Thomas, 71 AD3d 1231, 1233 [2010], lv denied 14 NY3d 893[2010]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.