| People v Raghnal |
| 2020 NY Slip Op 04031 [185 AD3d 1411] |
| July 17, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jamel Raghnal, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedAugust 29, 2017. The judgment convicted defendant upon a plea of guilty of arson in the seconddegree, burglary in the second degree, and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofarson in the second degree (Penal Law § 150.15), burglary in the second degree(§ 140.25 [2]), and criminal mischief in the fourth degree (§ 145.00[1]). At the outset, we agree with defendant that his waiver of the right to appeal is invalid (see People v Thomas, 34 NY3d545, 565-566 [2019]).
Defendant contends that County Court failed to conduct the requisite inquiry into hiscomplaints regarding his assigned counsel. Although "[t]he right of an indigent criminaldefendant to the services of a court-appointed lawyer does not encompass a right to appointmentof successive lawyers at defendant's option . . . , the right to be represented bycounsel of one's own choosing is a valued one, and a defendant may be entitled to new assignedcounsel upon showing 'good cause for substitution' " (People v Sides, 75 NY2d822, 824 [1990]). Thus, trial courts are required to conduct "at least a 'minimal inquiry' "when a defendant requests substitution of counsel and voices " 'seeminglyserious' " complaints about his or her assigned counsel (People v Porto, 16 NY3d 93, 100[2010], quoting Sides, 75 NY2d at 824-825; see People v Edwards, 173 AD3d 1615, 1616 [4th Dept2019]).
Here, defendant sent letters to the court on January 23, 2017, and March 28, 2017, eachcontaining allegations of various shortcomings in assigned counsel's performance. Neither ofthose letters, however, contained a request that the court provide defendant with substitutecounsel, and thus defendant, through those letters, failed to preserve his contention for review (see generally People v Alexander, 132AD3d 1412, 1413 [4th Dept 2015], lv denied 27 NY3d 1148 [2016]). In any event,the record establishes that the court sufficiently inquired into defendant's complaints at asubsequent appearance on March 31, 2017, and ensured that defendant and defense counsel hadresolved the alleged issues that had been raised in the January 23, 2017 and March 28, 2017letters.
Defendant thereafter sent another letter to the court on April 11, 2017, again raising certaincomplaints regarding counsel's performance. Like the prior letters, however, defendant did notrequest that the court assign substitute counsel, and thus the April 11, 2017 letter failed topreserve the issue for review (see generally Alexander, 132 AD3d at 1413). In any event,even if defendant had requested substitute counsel in that letter, defendant "failed to profferspecific allegations of a 'seemingly serious request' that would require the court to engage in aminimal inquiry" (Porto, 16 NY3d at 100; see generally Edwards, 173 AD3d at1616).
In May 2017, and as the scheduled date of defendant's trial approached, defendant sent twoadditional letters to the court. Those letters, however, did not contain a request that the courtassign substitute counsel, and instead indicated that, in defendant's estimation, he and hisattorney were not ready for trial. Likewise, at the next court appearance, at which defendantultimately pleaded guilty, defendant requested an adjournment of the scheduled trial, but did notrequest substitute counsel. Thus, defendant's letters of May 2017 and his statements at thefollowing court appearance did not preserve his contention for review "inasmuch as the recordreflects that both defendant and the court understood that defendant sought an adjournment. . . and did not request new assigned counsel" (People v Johnson, 94 AD3d 1496, 1497 [4th Dept 2012], affd20 NY3d 990 [2013]; see generally Alexander, 132 AD3d at 1413).
We reject defendant's further contention that the court abused its discretion in denying hisrequest for an adjournment. It is well settled that "[t]he court's exercise of discretion in denying arequest for an adjournment will not be overturned absent a showing of prejudice" (People v Resto, 147 AD3d 1331,1332 [4th Dept 2017], lv denied 29 NY3d 1000 [2017], denied reconsideration 29NY3d 1094 [2017] [internal quotation marks omitted]), and defendant made no such showinghere, inasmuch as he makes only a general assertion that he and his attorney required additionaltime to prepare his defense (seegenerally People v Peterkin, 81 AD3d 1358, 1360 [4th Dept 2011], lv denied 17NY3d 799 [2011]).
We likewise reject defendant's contention that the court erred in denying his motion towithdraw his guilty plea on the ground of ineffective assistance of counsel. The court properlydenied the motion inasmuch as, aside from defendant's unsupported allegations of deficientrepresentation, " 'nothing in the record casts doubt on the apparent effectiveness ofcounsel' " (People vWatkins, 77 AD3d 1403, 1404 [4th Dept 2010], lv denied 15 NY3d 956 [2010];see generally People v Kurkowski,117 AD3d 1442, 1443-1444 [4th Dept 2014]). Defendant's further contention that the pleashould be vacated based on the court's purported misstatement of defendant's possible sentencingexposure is not preserved for our review because defendant failed to move to withdraw his pleaon that ground (see generally People vCarlisle, 50 AD3d 1451, 1451 [4th Dept 2008], lv denied 10 NY3d 957[2008]).
Defendant's sentence is not unduly harsh or severe. We agree with defendant, however, thatthe certificate of conviction incorrectly reflects that defendant was convicted of two counts ofcriminal mischief in the fourth degree, and it must therefore be amended to reflect that he wasconvicted of only one count of criminal mischief in the fourth degree. Present—Peradotto,J.P., Carni, Lindley, Curran and Troutman, JJ.