| People v Gutek |
| 2017 NY Slip Op 04917 [151 AD3d 1281] |
| June 15, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Anthony D. Gutek, Appellant. |
Paul R. Corradini, Elmira, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 16, 2014, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree.
Pursuant to a plea agreement, defendant pleaded guilty to the reduced charge of attemptedrobbery in the first degree in satisfaction of an indictment charging him with robbery in the firstdegree. The charge stems from defendant's actions in forcibly stealing cash from a gas stationclerk while threatening to use a tire iron. Defendant was adjudicated a second felony offenderand, consistent with the plea agreement, County Court imposed a prison sentence of six yearswith five years of postrelease supervision. Defendant appeals.
Defendant contends that County Court erred in denying his requests to assign substitutecounsel. Defendant first raised this issue at a preindictment appearance, claiming that he had losttrust in his assigned public defender and that counsel had made statements indicating that hewould not be acting in defendant's best interests. County Court (Cawley, J.) inquired into thenature of defendant's complaints and, citing counsel's extensive experience before the court incriminal matters and finding no basis for substitution, denied the request. Defendant againrequested substitute counsel at a postindictment appearance, claiming that counsel was nothelping him or acting in his interests. After conducting a thorough inquiry into the matter,County Court (Smith, J.) denied the request.
While a criminal defendant is entitled to the effective assistance of counsel and to the [*2]assignment of counsel if indigent (see People v Smith, 18 NY3d 588,592 [2012]), this "does not encompass a right to appointment of successive lawyers atdefendant's option" (People v Sides, 75 NY2d 822, 824 [1990]). To be entitled tosubstitute counsel, defendant must demonstrate "good cause for a substitution, such as a conflictof interest or other irreconcilable conflict with counsel" (id. [internal quotation marks andcitation omitted]). "Good cause determinations are necessarily case-specific and therefore fallwithin the discretion of the trial court" (People v Smith, 18 NY3d at 592 [citationomitted]). When assessing whether an appointment of new counsel is warranted, the court mayconsider a variety of factors, including "whether present counsel is reasonably likely to afford adefendant effective assistance" (id. [internal quotation marks and citation omitted]; see People v Linares, 2 NY3d 507,510 [2004]).
Here, County Court appropriately inquired into defendant's preindictment and postindictmentrequests and determined that he failed to proffer good cause for a substitution. With regard todefendant's preindictment request for new counsel in which he alleged that counsel made certainstatements to him, County Court (Cawley, J.) ascertained that counsel was capable ofrepresenting defendant and, despite counsel's hesitation to factually contradict his client, elicitedcounsel's assurance that he was representing defendant to the best of his ability. In response todefendant's postindictment request, County Court (Smith, J.) pressed counsel for a response todefendant's allegations. Counsel denied the factual assertions but, importantly, did not take aposition adverse to defendant on his request for substitute counsel or otherwise, and no conflictof interest arose therefrom (see People vMitchell, 21 NY3d 964, 967 [2013]; People v Tyler, 130 AD3d 1383, 1385 [2015]). Despite multiplediligent inquiries by the court into the basis for defendant's requests, he failed at any point toarticulate a specific conflict of interest or actual irreconcilable conflict with counsel that affectedcounsel's representation so as to warrant assigning new counsel (see People v Smith, 18NY3d at 593; People v Linares, 2 NY3d at 511; People v Morehouse, 140 AD3d 1202, 1203 [2016], lvdenied 28 NY3d 934 [2016]; cf. People v Sides, 75 NY2d at 824-825). Thus, thecourt's denial of defendant's requests for the substitution of counsel was a provident exercise ofdiscretion.
Finally, we have examined defendant's argument that the sentence was harsh and excessivegiven his limited criminal history, employment record and acceptance of responsibility, and arenot persuaded. The second felony offender sentence was just above the minimum permitted forthis class C violent felony (see Penal Law §§ 70.02 [1] [b]; 70.06 [6][b]) and substantially less than the potential sentence if he were convicted as charged in theindictment (see Penal Law §§ 70.02 [1] [a]; 70.06 [6] [a]). Given thenature of this crime and the favorable plea deal, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the agreed-upon sentence in the interest of justice (see People v Melton, 136 AD3d1069, 1070 [2016], lv denied 27 NY3d 1002 [2016]).
McCarthy, Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.