| People v Booker |
| 2015 NY Slip Op 08551 [133 AD3d 1326] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Booker, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered June 7, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). The conviction was based on defendant's possession ofvarious narcotics that were found by parole officers during a search of defendant'sresidence following a parole violation. Defendant's assigned counsel filed a motion tosuppress the seized evidence. On the date of the scheduled suppression hearing,defendant complained to County Court, for the first time, about the quality of assignedcounsel's representation and sought to relieve assigned counsel. In expressing hisdissatisfaction with assigned counsel, defendant requested that he be allowed to proceedpro se and, upon the court's refusal to relieve assigned counsel, defendant requested anadjournment to permit him to retain new counsel. The court noted that defendant hadpreviously appeared before the court on numerous occasions, but had never mentioned adesire to retain new counsel because of dissatisfaction with assigned counsel. The courtalso noted that it had not received any correspondence from the new counsel thatdefendant claimed to have contacted. The court thus denied defendant's request for anadjournment and, following the suppression hearing at which defendant was representedby assigned counsel, the court denied the suppression motion. Defendant thereafterretained new counsel and entered a guilty plea. We affirm.
Contrary to defendant's contention, he was not denied his constitutional right toproceed pro se. Defendant's request to proceed pro se " 'was made in the contextof a claim expressing his dissatisfaction with his attorney and was notunequivocal' " (People vWhite, 114 AD3d 1256, 1257 [2014], lv denied 23 NY3d 1026 [2014];see People v Gillian, 8NY3d 85, 88 [2006];People v Alexander, 109 AD3d 1083, 1084 [2013]). In any event, we note thatdefendant thereafter " 'abandoned his request to proceed pro se and, instead,requested [an adjournment to retain] new counsel' " (White, 114 AD3d at1257; see People v Hayden, 250 AD2d 937, 938 [1998], lv denied 92NY2d 879 [1998], reconsideration denied 92 NY2d 982 [1998], certdenied 526 US 1028 [1999]). Although defendant's contention that the court abusedits discretion in denying his request for an adjournment to permit him to retain newcounsel survives his guilty plea inasmuch as the right to counsel of one's choosing "is sodeeply intertwined with the integrity of the process in [the court] that defendant's guiltyplea is no bar to appellate review" (People v Griffin, 20 NY3d 626, 630 [2013]; seegenerally People v Hansen, 95 NY2d 227, 230-231 [2000]), we reject thatcontention. We note that " 'good cause [for an adjournment to permit a defendantto retain new counsel] does not exist [where, as here,] defendant[ ] [is] guilty of delayingtactics' " (People vSantiago, 111 AD3d 1383, 1384 [2013], lv denied 23 NY3d 1025[2014], quoting People vLinares, 2 NY3d 507, 511 [2004]). We thus conclude that, under the [*2]circumstances of this case, "defendant was not denied hisright to retain counsel of his own choosing and the . . . court did not abuseits discretion in denying defendant's request to delay the [hearing]" (People vMichalek, 195 AD2d 1007, 1008 [1993], lv denied 82 NY2d 807[1993]).
Defendant's further contention that he was denied effective assistance of counselbased on an alleged conflict of interest with assigned counsel "does not survive [his]plea[ ] of guilty where, as here, '[t]here is no showing that the plea bargaining processwas infected by any allegedly ineffective assistance or that defendant entered the plea[ ]because of [assigned counsel's] allegedly poor performance' " (People v Watkins, 2 AD3d1391, 1391 [2003], lv denied 2 NY3d 747 [2004]).
We have examined defendant's remaining contention and, to the extent that it isproperly before us in the context of his plea of guilty, we conclude that it does notrequire modification or reversal of the judgment. Present—Smith, J.P., Peradotto,Carni, Whalen and DeJoseph, JJ.