| People v Jones |
| 2017 NY Slip Op 03364 [149 AD3d 1576] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Melchi N.Jones, Appellant. (Appeal No. 1.) |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered May 15,2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the fifth degree, improper lane: right turn, no seat belt and operating amotor vehicle without an inspection certificate.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminalpossession of a controlled substance in the fifth degree (Penal Law § 220.06 [5])and various violations of the Vehicle and Traffic Law, defendant contends that County Courtfailed to make an appropriate inquiry into defendant's allegations of a potential conflict with hisassigned counsel and thereby deprived defendant of his right to counsel of his choosing.We reject that contention.
"It is well settled that an indigent defendant is guaranteed the right to counsel by both theFederal and New York State Constitutions (see US Const 6th Amend; NY Const, art I,§ 6), but this entitlement does not encompass the right to counsel of one's ownchoosing . . . While a court has a duty to investigate complaints concerning counsel,'this is far from suggesting that an indigent's request that a court assign new counsel is to begranted casually' . . . Whether counsel is substituted is within the 'discretion andresponsibility' of the trial judge . . . and a court's duty to consider such a motion isinvoked only where a defendant makes a 'seemingly serious request[ ]' . . .Therefore, it is incumbent upon a defendant to make specific factual allegations of 'seriouscomplaints about counsel' . . . If such a showing is made, the court must make atleast a 'minimal inquiry,' and discern meritorious complaints from disingenuous applications byinquiring as to 'the nature of the disagreement or its potential for resolution' " (People v Porto, 16 NY3d 93,99-100 [2010]; see generally People v Sides, 75 NY2d 822, 824-825 [1990]; People vMedina, 44 NY2d 199, 207 [1978]).
Here, on the day trial was scheduled to begin, defendant informed the court that, while he didnot wish to represent himself, he also did not want to be represented by his assigned counsel.Defendant faulted defense counsel for failing to communicate with him, failing to provide himwith certain paperwork, and failing to obtain a more favorable plea offer.
We agree with the People that defendant's complaints were not " 'serious complaintsabout counsel' " (Porto, 16 NY3d at 100). Rather, defendant "made only vagueassertions that defense counsel was not in frequent contact with him and did not aid in hisdefense" (People v MacLean, 48AD3d 1215, 1217 [2008], lv denied 10 NY3d 866 [2008], deniedreconsideration 11 NY3d 790 [2008]; see People v Velasquez, 66 AD3d 1460, 1461 [2009], lvdenied 13 NY3d 942 [2010]). Even assuming, arguendo, that defendant's complaints aboutdefense counsel "suggest[ed] a serious possibility of good cause for the substitution [of counsel]"and thereby established a need [*2]for further inquiry (People v Faeth, 107 AD3d 1426,1427 [2013], lv denied 21 NY3d 1073 [2013] [internal quotation marks omitted]), weconclude that "the court afforded defendant the opportunity to express his objections concerningdefense counsel, and the court thereafter reasonably concluded that defendant's objections werewithout merit" (People v Bethany,144 AD3d 1666, 1669 [2016]; see Faeth, 107 AD3d at 1427).
Contrary to defendant's further contention, the court did not improperly focus on thetimeliness of the request. The constitutional right to counsel "does not bestow upon a criminaldefendant the absolute right to demand that his trial be delayed while he selects another attorneyto represent him at trial" (People v Arroyave, 49 NY2d 264, 271 [1980]; seePorto, 16 NY3d at 101). Present—Centra, J.P., Peradotto, Lindley, Curran andScudder, JJ.