| People v Harris |
| 2017 NY Slip Op 04669 [151 AD3d 1720] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Tishara Harris, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedSeptember 22, 2011. The judgment convicted defendant, upon a jury verdict, of attemptedrobbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]).She contends that trial counsel should have been allowed to withdraw from representing her, andthat County Court should have granted her request for new counsel or, at a minimum, shouldhave made a more detailed inquiry regarding her complaints about the performance of counsel.As an initial matter, we conclude that defendant failed to preserve for our review any contentionwith regard to the court's denial of counsel's pretrial application to withdraw from representingher, in which application defendant did not join (see People v Youngblood, 294 AD2d954, 955 [2002], lv denied 98 NY2d 702 [2002]; cf. People v Tineo, 64 NY2d531, 535-536 [1985]). In any event, we conclude that the court did not improvidently exercise itsdiscretion in denying counsel's pretrial application to withdraw or his subsequent similarapplication, made at the beginning of the second day of trial, in which motion defendant may bedeemed to have joined. With regard to counsel's pretrial application, we note that defendant'salleged inability to pay for counsel's services did not entitle counsel to withdraw as defendant'sattorney (see People v Woodring, 48AD3d 1273, 1274 [2008], lv denied 10 NY3d 846 [2008]), nor did defendant'sapparent indecision concerning whether to plead guilty or go to trial "render[ ] it unreasonablydifficult for the lawyer to carry out [his] employment effectively" (Woodring, 48 AD3d at1274, quoting former Code of Professional Responsibility DR 2-110 [C] [1] [iv] [22 NYCRR1200.15 (c) (1) (iv)] ). With regard to counsel's request to withdraw during trial, we conclude thatthe reasons cited by counsel did not warrant his withdrawal from representation and that thecourt, in denying that request, properly "balance[d] the need for the expeditious and orderlyadministration of justice against the legitimate concerns of counsel" (Woodring, 48 AD3dat 1274 [internal quotation marks omitted]; see generally People v O'Daniel, 24 NY3d 134, 138 [2014];People v Arroyave, 49 NY2d 264, 270-272 [1980]).
We further conclude that the court did not abuse its discretion in denying the request bydefendant for an adjournment of trial to enable defendant to retain new counsel or to obtain asubstitution of assigned counsel for retained counsel (see generally People v Linares, 2 NY3d 507, 510-511 [2004];People v Sides, 75 NY2d 822, 824 [1990]; see also O'Daniel, 24 NY3d at 138;Arroyave, 49 NY2d at 271-272). "[A]bsent exigent or compelling circumstances, a courtmay, in the exercise of its discretion, deny a defendant's request to substitute counsel made on theeve of or during trial if the defendant has been accorded a reasonable opportunity to retaincounsel of [her] own choosing before that time . . . At [that] point, public policyconsiderations against delay become even stronger, and it is incumbent upon the defendant todemonstrate that the requested adjournment has been necessitated by forces beyond [her] controland is not simply a dilatory tactic" (Arroyave, 49 NY2d at 271-272; see Sides, 75NY2d at 824). We conclude that the court made the requisite "minimal inquiry" into defendant'scomplaints concerning her attorney and her request for a substitution of counsel (Sides,75 NY2d at 825; see People v Porto,16 NY3d 93, 99-100 [2010]; Linares, 2 NY3d at 511). Although it was incumbentupon defendant to show " 'good cause' " for a substitution of counsel(Sides, 75 NY2d at 824), defendant expressed only "vague and generic" complaintshaving "no merit or substance" and thus failed to show that her counsel "was in any way deficientin representing" her (Linares, 2 NY3d at 511). Present—Smith, J.P., Lindley,DeJoseph, NeMoyer and Curran, JJ.