| People v Puccini |
| 2016 NY Slip Op 08127 [145 AD3d 1107] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Puccini, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Main Jr., J.), renderedNovember 25, 2013 in Franklin County, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a weapon in the third degree.
In May 2012, in the Village of Saranac Lake, Franklin County, defendant allegedlybrandished a gun at an individual while in the presence of a child, and a subsequentsearch by police of defendant's residence yielded multiple handguns, shotguns and rifles.It appears that defendant initially was charged in the local justice court, at which time theFranklin County Conflict Defender's Office was assigned to represent him. According tothe Conflict [*2]Defender, defendant immediately wasadvised of a possible conflict of interest stemming from the Conflict Defender's priorrepresentation of an unrelated third party in a criminal matter into which defendantapparently had inserted himself as some sort of advocate. According to the ConflictDefender, defendant had "no problem" with the assigned representation and, over thecourse of the next year, the Conflict Defender's Office was assigned to representdefendant "in a total of six (6) criminal and family court matters."
In March 2013, defendant was indicted and charged with criminal possession of aweapon in the third degree, endangering the welfare of a child and menacing in thesecond degree, and the matter was transferred to the Integrated Domestic Violence Part of Supreme Court. On May 9, 2013, the Conflict Defender moved for permission towithdraw from further representation of defendant, citing defendant's recently expresseddissatisfaction with the services rendered; defendant did not file an affidavit in support ofthat motion. Supreme Court denied the Conflict Defender's motion to withdraw, as wellas defendant's subsequent pro se motion seeking the assignment of substitutecounsel.
Pursuant to a plea agreement with the People, defendant pleaded guilty to criminalpossession of a weapon in the third degree in full satisfaction of the indictment andwaived his right to appeal. Consistent with the terms of the plea agreement, SupremeCourt sentenced defendant to five years of probation with the first 100 days to be servedin the local jail.[FN*] This appeal by defendant ensued.
We affirm. Defendant, as so limited by his brief, contends that Supreme Court failedto conduct a sufficient inquiry prior to denying the respective motions to relieve theConflict Defender's Office and to assign defendant substitute counsel. Although thisargument survives defendant's unchallenged appeal waiver to the extent that it impactsupon the voluntariness of his plea, such claim is unpreserved for our review in theabsence of an appropriate postallocution motion (see CPL 220.60 [3]; People v Morehouse, 140AD3d 1202, 1203 [2016], lv denied 28 NY3d 934 [2016]; People v Rolfe, 83 AD3d1219, 1220 [2011], lv denied 17 NY3d 809 [2011]).
To the extent that defendant's brief may be read as asserting a violation of hisconstitutional right to counsel—an issue that may, in certain defined instances, beraised for the first time upon appeal (see People v McLean, 15 NY3d 117, 120-121[2010])—we find any such argument to be lacking in merit. While it is true thatindigent defendants are entitled to assigned [*3]counsel(see People v Smith, 18NY3d 588, 592 [2012]), "this entitlement does not encompass the right to counsel ofone's own choosing" (People vPorto, 16 NY3d 93, 99 [2010]). To warrant the substitution of assigned counsel,defendant was required "to make specific factual allegations of serious complaints aboutcounsel. If such a showing is made, the court must make at least a minimal inquiry, anddiscern meritorious complaints from disingenuous applications by inquiring as to thenature of the disagreement or its potential for resolution" (People v Porto, 16NY3d at 100 [internal quotation marks and citations omitted]). Here, defendantfailed—in the first instance—to articulate serious complaints about theConflict Defender, and general dissatisfaction with counsel is insufficient to warrantsubstitution (see People v Davenport, 58 AD3d 892, 895 [2009], lvdenied 12 NY3d 782 [2009]). As our review of the record confirms that none of thesubmissions tendered in support of the respective motions demonstrated the good causerequired for the substitution of counsel, we reject defendant's claim that he was deniedhis constitutional right to counsel.
Peters, P.J., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:At the time ofsentencing, defendant had 106 days of jail credit and, hence, Supreme Court deemed thataspect of the sentence to be satisfied.