| People v Shabazz |
| 2019 NY Slip Op 05797 [174 AD3d 824] |
| July 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Zarif Shabazz, Appellant. |
Mark Diamond, New York, NY, for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, NY (Carrie A. Ciganek of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (David S.Zuckerman, J.), rendered October 3, 2017, convicting him of assault in the second degree (twocounts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was involuntary because the County Courtrefused to grant him an adjournment so that he could retain private counsel to substitute for hisassigned counsel is unpreserved for appellate review, since the defendant did not move towithdraw his plea prior to sentencing or otherwise raise the issue in the County Court (see People v Bridgers, 159 AD3d715 [2018]; People v Williams,156 AD3d 920, 921 [2017]). In any event, the contention is without merit. "[A]bsent exigentor compelling circumstances, a court may, in the exercise of its discretion, deny a defendant'srequest to substitute counsel made on the eve of or during trial if the defendant has been accordeda reasonable opportunity to retain counsel of his own choosing before that time" (People vArroyave, 49 NY2d 264, 271 [1980]).
Here, the defendant had ample opportunity after his release on bail in January 2017, and evenafter a trial date of May 8, 2017, was set in March 2017, to retain his own counsel. Further, therewere no "exigent or compelling circumstances" warranting a late adjournment (People vArroyave, 49 NY2d at 271). In that regard, although the defendant made certain generalizedcomplaints about his assigned counsel, these complaints "did not suggest the serious possibilityof a[n] . . . impediment to the defendant's representation by assigned counsel" (People v Allison, 69 AD3d 740,740 [2010]; see People v Wesley,134 AD3d 964, 965 [2015]). Under these circumstances, it was reasonable and not coercivefor the court to deny the defendant's application for an adjournment to retain counsel (cf.People v Wesley, 134 AD3d at 964; People v Allison, 69 AD3d at 741; People v Campbell, 54 AD3d 959,960 [2008]).
The defendant further asserts that his assigned counsel was ineffective in that he failed tocommunicate with the defendant, provide requested evidence, or investigate the case, and that hisplea of guilty was thereby rendered involuntary. Since the defendant's ineffective assistance ofcounsel contention implicates the voluntariness of his plea, it is not waived by any valid appealwaiver (see generally People vKovalsky, 166 AD3d 900, 901 [2018]; People v Smith, 162 AD3d 799 [2018]). However, the defendant'sineffective assistance of counsel contention cannot be reviewed on direct appeal because it isbased on matters outside the record on appeal (see People v Stevens, 162 AD3d 1077, 1078 [2018]; People v Rohlehr, 87 AD3d 603,604 [2011]). The appropriate vehicle for review of such a contention is a motion pursuant to CPL440.10 (see People v Stevens, 162 AD3d at 1078; People v Rohlehr, 87 AD3d at604). Leventhal, J.P., Cohen, Hinds-Radix and Brathwaite Nelson, JJ., concur.