| People v Rohadfox |
| 2014 NY Slip Op 00841 [114 AD3d 1217] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v CoreyRohadfox, Respondent. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), dated August 27, 2012. The order granted the motion of defendant to set aside theverdict and ordered a new trial.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: The People appeal from an order in which Supreme Court sua sponteconverted defendant's postverdict pro se "motion for dismissal" to a CPL 330.30 (1)motion to set aside the verdict and granted that motion. Following a jury trial duringwhich defendant represented himself, the jury found defendant guilty of one count ofcriminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]), but not guilty of two other counts of the same crime (§ 220.16 [1],[12]). In granting defendant's motion, the court determined that it had deprived defendantof his right to retained counsel of his choice by denying his request for an adjournment toobtain new retained counsel.
"Pursuant to CPL 330.30 (1), following the issuance of a verdict and beforesentencing a court may set aside a verdict on '[a]ny ground appearing in the recordwhich, if raised upon an appeal from a prospective judgment of conviction, wouldrequire a reversal or modification of the judgment as a matter of law byan appellate court' " (People vBenton, 78 AD3d 1545, 1546 [2010], lv denied 16 NY3d 828 [2011])."The power granted a Trial Judge is, thus, far more limited than that of an intermediateappellate court, which is authorized to determine not only questions of law but issues offact . . . , to reverse or modify a judgment when the verdict is against theweight of the evidence . . . , and to reverse '[a]s a matter of discretion in theinterest of justice' " (People v Carter, 63 NY2d 530, 536 [1984]).
The issue before us on this appeal therefore is whether a court's alleged abuse ofdiscretion in denying an adjournment would require reversal of the judgment ofconviction as a matter of law upon an appeal therefrom (see generally Peoplev Spears, 64 NY2d 698, 699-700 [1984]). Under the unique circumstances of thiscase, we conclude that it would.
"It is certainly well established that the right to counsel, guaranteed by both theFederal [*2]and State Constitutions . . . ,embraces the right of a criminal defendant to be represented by counsel of his ownchoosing . . . As a necessary corollary to this right, a defendant must beaccorded a reasonable opportunity to select and retain his counsel" (People vArroyave, 49 NY2d 264, 270 [1980]). In other words, the fundamental right to berepresented by counsel of one's own choosing "is denied to a defendant unless he [or she]gets reasonable time and a fair opportunity to secure counsel of his [or her] own choice"(People v McLaughlin, 291 NY 480, 483 [1944]; see generally Arroyave,49 NY2d at 273).
In our view, the court's refusal to grant defendant's request for an adjournment was"an abuse of discretion as a matter of law" and effectively denied defendant thefundamental right to be represented by counsel of his own choosing (Spears, 64NY2d at 700; see People v Walker, 29 AD2d 973, 973-974 [1968]; seegenerally Arroyave, 49 NY2d at 273; McLaughlin, 291 NY at 482-483). Onthe date scheduled for suppression hearings, defense counsel, who had been retained bydefendant's family while defendant was incarcerated, withdrew defendant's requests forsuppression and sought an expedited trial without defendant's knowledge or consent. Atthe next court appearance, defendant requested an adjournment of the expedited trial toafford him time in which to retain another attorney. The court, in denying that request,did not afford defendant "[a] reasonable time and a fair opportunity to secure counsel ofhis own choice" (McLaughlin, 291 NY at 483; cf. People v Sapienza, 75AD3d 768, 771 [2010]; People v Mao-Sheng Lin, 50 AD3d 1251, 1253 [2008],lv denied 10 NY3d 961 [2008]), particularly in view of the fact that the trial wasexpedited without defendant's knowledge or consent (see People v Hartman, 64 AD3d 1002, 1005 [2009], lvdenied 13 NY3d 860 [2009]; cf. People v O'Kane, 55 AD3d 315, 316 [2008], lvdenied 11 NY3d 928 [2009]; People v Campbell, 54 AD3d 959, 960 [2008], lvdenied 12 NY3d 756 [2009]). Inasmuch as we conclude that defendant was deniedthe fundamental right to be represented by counsel of his own choosing, reversal of thejudgment of conviction on that ground would be required as a matter of law upon anappeal therefrom (see CPL 330.30 [1]), and the court therefore properly set asidethe verdict. Present—Scudder, P.J., Centra, Carni, Sconiers and Whalen, JJ.