| People v Miller |
| 2018 NY Slip Op 08200 [166 AD3d 1385] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Demonte N. Miller, Appellant. |
Harvey C. Silverstein, Latham, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered October 2, 2015 in Albany County, convicting defendant upon his plea of guiltyof the crime of attempted robbery in the first degree.
In October 2014, defendant was indicted and charged with six counts of criminal saleof a controlled substance in the third degree and, in February 2015, a second indictmentwas returned charging defendant with one count of robbery in the first degree. Additionalcharges followed and, after defendant twice failed to appear before Supreme Court, hisbail was revoked. In full satisfaction of both indictments and other pending charges,defendant thereafter agreed to plead guilty to one count of attempted robbery in the firstdegree with the understanding that he would be sentenced to a prison term of 14 yearsfollowed by five years of postrelease supervision. The plea agreement also requireddefendant to waive his right to appeal. Following a detailed plea colloquy, defendantpleaded guilty to the reduced robbery charge, and the matter was adjourned forsentencing. Defendant subsequently asked that sentencing be delayed because he wantedto hire "a brand new attorney"—citing retained counsel's alleged failure to respondto his inquiries regarding the seizure of his vehicle and the forfeiture of certain bailmoneys—and informed Supreme Court that he was considering withdrawing hisplea. Supreme Court denied defendant's request for an adjournment and thereaftersentenced defendant as a second felony offender to the agreed-upon term ofimprisonment. This appeal ensued.
Preliminarily, we agree with defendant that his waiver of the right to appeal isinvalid. Supreme Court did not explain the separate and distinct nature of the waiver, andits brief colloquy with defendant was insufficient to establish "that defendant appreciatedthe right that he was relinquishing and understood the consequences thereof" (People v Mallard, 163 AD3d1350, 1351 [2018], lv denied 32 NY3d 1066 [2018]; see People vBrewster, 161 AD3d 1309, 1310 [2018]; People v Thompson, 157 AD3d 1141, 1141 [2018]).Although defendant executed a written waiver in open court after conferring withcounsel, Supreme Court did not ascertain whether defendant read the waiver orunderstood the consequences thereof (see People v [*2]McClain, 161AD3d 1457, 1458 [2018]; People v Rock, 151 AD3d 1383, 1384 [2017], lvdenied 30 NY3d 953 [2017]; People v Williams, 132 AD3d 1155, 1155 [2015], lvdenied 27 NY3d 1157 [2016]). Given the invalid waiver, defendant's challenge tothe severity of the agreed-upon sentence imposed is not foreclosed (see People v Callender, 164AD3d 962, 963 [2018]). That said, given defendant's lengthy criminal history andthe fact that he received a favorable plea agreement that resolved a number of pendingcharges, we discern no extraordinary circumstances or abuse of discretion warranting areduction of the sentence in the interest of justice (see generally People v Suddard, 164 AD3d 950, 951[2018]; People v Ruise, 131AD3d 1328, 1328 [2015]).
Nor are we persuaded that Supreme Court abused its discretion in denyingdefendant's request for an adjournment of sentencing in order to retain substitute counsel.Although "criminal defendants have a constitutional right to be represented by counsel oftheir own choosing and must be accorded a reasonable opportunity to select and retainsuch counsel . . . , this right is qualified in the sense that a defendant maynot employ such right as a means to delay judicial proceedings" (People v O'Daniel, 105 AD3d1144, 1146 [2013] [internal quotation marks, brackets and citations omitted],affd 24 NY3d 134 [2014]; see People v Singleton, 163 AD3d 1272, 1273 [2018]; People v Orminski, 108 AD3d864, 865 [2013], lv denied 22 NY3d 958 [2013]; see also People v Nelson, 1AD3d 796, 797 [2003], lv denied 1 NY3d 631 [2004]). Accordingly, "arequest to change counsel previously retained or assigned must be addressed to the trialcourt's discretion to insure that the defendant's purported exercise of the right does notserve to delay or obstruct" the proceedings before the court (People v Orminski,108 AD3d at 865 [internal quotation marks, brackets and citation omitted]).
After assuring Supreme Court during the course of the plea colloquy that he wassatisfied with retained counsel's services, defendant appeared at sentencingapproximately six weeks later and indicated that he wished to retain a newattorney—citing counsel's failure to (1) obtain an adjournment so that defendantcould get married, (2) adequately explain the effect of the advantageous plea resolutionsecured by counsel, which disposed of the other indictment and all remaining chargesthen pending against defendant, and (3) respond to defendant's inquiries regarding theseizure of his vehicle and the forfeiture of certain bail moneys. Defendant, however, didnot offer a reasonable explanation for his delay in pursuing such relief, and his postpleadissatisfaction with his defense counsel—a capable, experienced trial attorneywho, in our view, provided defendant with meaningful representation—did notconstitute a compelling reason for seeking substitute retained counsel (see People vNelson, 1 AD3d at 797-798). Additionally, it is worth noting that, despite havingsufficient opportunity to retain new counsel prior to sentencing (see People vSingleton, 163 AD3d at 1272), defendant failed to do so (see People vOrminski, 108 AD3d at 866). Under these circumstances, we cannot say thatSupreme Court abused its discretion in denying defendant's request for an adjournmentor otherwise deprived him of his right to counsel of his choosing.
Finally, defendant's claim that the interplay between Penal Law§§ 70.06 and 70.70—governing the sentencing of certainsecond felony offenders—deprived him of equal protection need not detain us, asthe record fails to reflect that defendant provided the required notice to the AttorneyGeneral (see People vWesley, 151 AD3d 1270, 1272 [2017]; People v Perez, 93 AD3d 1032, 1038-1039 [2012], lvdenied 19 NY3d 1000 [2012]) or that he raised this argument before Supreme Court(see People v Alsaifullah,130 AD3d 1321, 1322 [2015]; People v Evans, 27 AD3d 905, 906 [2006], lvdenied 6 NY3d 847 [2006]). Accordingly, defendant's argument is unpreserved, andwe decline his invitation to take corrective action in the interest of justice. Defendant'sremaining arguments, to the extent not specifically addressed, have been examined andfound to be lacking in merit.
McCarthy, J.P., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.