| People v Brown |
| 2017 NY Slip Op 07005 [154 AD3d 1004] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Andrew L.Brown, Appellant. |
John A. Cirando, Syracuse, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered February 2, 2015, convicting defendant upon his plea of guilty of the crime of robberyin the second degree.
Defendant pleaded guilty as charged to robbery in the second degree. Prior to sentencing, hemoved to withdraw his plea. County Court denied the motion without a hearing and thereaftersentenced defendant, as a second felony offender, to the agreed-upon prison term of five years, tobe followed by five years of postrelease supervision. Defendant now appeals and we affirm.
We reject defendant's contention that County Court erred in denying his request for substitutecounsel. Defendant initially asked for new counsel at a postindictment appearance and CountyCourt granted the request. At subsequent appearances following the substitution of counsel, newcounsel raised concerns regarding being able to communicate with defendant and defendantagain requested a substitution of counsel. Defendant informed County Court that the rift withcounsel centered around defendant's belief that he had an affirmative defense to the crime ofrobbery in the first degree and requested that counsel pursue such a defense with motions and byproviding him with certain written legal materials that support such defense. County Court fullyexplained that defendant was not charged with that crime so any actions in defense to that chargewould be frivolous and, citing counsel's experience and capability, denied [*2]the request on the ground that defendant had not proffered goodcause to justify another substitution of counsel.
The right to representation by counsel "does not encompass a right to appointment ofsuccessive lawyers at [the] defendant's option," but "the right to be represented by counsel ofone's own choosing is a valued one, and a defendant may be entitled to new assigned counselupon showing good cause for a substitution, such as a conflict of interest or other irreconcilableconflict with counsel" (People v Sides, 75 NY2d 822, 824 [1990] [internal quotationmarks and citation omitted]; see Peoplev Gutek, 151 AD3d 1281, 1282 [2017]). "Good cause determinations are necessarilycase-specific and therefore fall within the discretion of the trial court" (People v Linares, 2 NY3d 507,510 [2004]; see People v Smith, 18NY3d 588, 592 [2012]; People vToledo, 144 AD3d 1332, 1333-1334 [2016], lv denied 29 NY3d 1001 [2017]).Among the factors that County Court may assess when considering the substitution of counsel is"whether present counsel is reasonably likely to afford a defendant effective assistance"(People v Smith, 18 NY3d at 592 [internal quotation marks and citation omitted]). Here,defendant's claims regarding counsel's failure to pursue a potential defense to an uncharged crimedoes not establish good cause for substitution of counsel. Further, defendant did not demonstratethat the communication problems between himself and counsel amounted to an irreconcilableconflict warranting substitution. Accordingly, County Court's denial of defendant's request fornew counsel was not an abuse of discretion (see People v Smith, 18 NY3d at 593;People v Linares, 2 NY3d at 511; People v Breedlove, 61 AD3d 1120, 1121 [2009], lv denied12 NY3d 913 [2009]).
Defendant also contends that he was denied the effective assistance of counsel. Although thisargument was preserved for our review by defendant's motion to withdraw his plea, we find it tobe without merit. "In the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the record castsdoubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404[1995]; see People v Khan, 139AD3d 1261, 1264 [2016], lv denied 28 NY3d 932 [2016]). Here, counsel secured avery favorable plea deal, which included the imposition of the minimum sentence to whichdefendant was exposed (see Penal Law § 70.06 [6] [b]), and pursuedappropriate pretrial motions (see Peoplev Wren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Brown, 115 AD3d 1115,1116 [2014], lv denied 24 NY3d 959 [2014]). Further, it is apparent that defendant'sdifficulties in communicating with counsel were self-imposed (see People v Conyers, 227AD2d 793, 794 [1996], lv denied 88 NY2d 982 [1996]). Accordingly, we conclude thatdefendant received meaningful representation (see People v Cavallaro, 123 AD3d 1221, 1223 [2014]; People vWren, 119 AD3d at 1292).
Defendant further contends that his guilty plea was not voluntarily entered into and thatCounty Court erred in denying his motion to withdraw the plea. "Whether to permit a defendantto withdraw his or her plea of guilty is left to the sound discretion of County Court, andwithdrawal will generally not be permitted absent some evidence of innocence, fraud or mistakein its inducement" (People vFarnsworth, 140 AD3d 1538, 1539 [2016] [internal quotation marks and citationsomitted]; accord People v Beaver,150 AD3d 1325, 1325 [2017]). For the reasons previously stated, we reject defendant'scontention that his plea was involuntary as the result of ineffective assistance of counsel.Moreover, the record reflects that County Court affirmed that defendant understood theramifications of pleading guilty, including the rights being forfeited by the plea, that he haddiscussed the plea with counsel and that he was not coerced into accepting the plea agreement.Accordingly, defendant's plea was knowing, voluntary and intelligent (see People v Arnold, 102 AD3d1061, 1062 [2013]; People v Merck, 242 AD2d 792, 793 [1997], lv denied91 NY2d 895 [1998]), and County Court properly denied the motion to withdraw the [*3]guilty plea without a hearing (see People v Morey, 110 AD3d 1378, 1379 [2013], lvdenied 23 NY3d 965 [2014]; Peoplev Galvan, 107 AD3d 1058, 1059 [2013], lv denied 21 NY3d 1042 [2013]).
McCarthy, Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.