| People v Graham |
| 2020 NY Slip Op 06545 [188 AD3d 909] |
| November 12, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Davol A. Graham, Appellant. |
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant, and appellantpro se.
Timothy D. Sini, District Attorney, Riverhead, NY (Timothy P. Finnerty and Marion Tang ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (FernandoCamacho, J.), rendered April 12, 2016, convicting him of sex trafficking (two counts), promotingprostitution in the second degree, promoting prostitution in the third degree, and unlawfulimprisonment in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of his constitutional right tocounsel by the County Court's refusal to assign him new counsel. "The right of an indigentcriminal defendant to the services of a court-appointed lawyer does not encompass a right toappointment of successive lawyers at defendant's option" (People v Washington, 25 NY3d 1091, 1095 [2015] [internalquotation marks omitted]; see People v Sides, 75 NY2d 822, 824 [1990]; People vSawyer, 57 NY2d 12, 18-19 [1982]). "Nevertheless, 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 at 824 [internal quotation marksomitted]; see People v Washington, 25 NY3d at 1095). "Such requests may not be usedmerely to delay the orderly administration of justice, and while they are not to be grantedcasually[,] the trial court in exercising its discretion to grant or deny must carefully evaluateseemingly serious requests in order to ascertain whether there is indeed good cause forsubstitution" (People v Sides, 75 NY2d at 824; see People v Wright, 147 AD3d 1088, 1089 [2017]). "Where aseemingly serious request is made, the trial court is obligated to conduct at least a 'minimalinquiry' to determine the nature of the conflict and a possible resolution" (People v Ward, 121 AD3d 1026,1027 [2014]; see People v Porto, 16NY3d 93, 100 [2010]; People vHarris, 166 AD3d 801, 802 [2018]). "In determining whether good cause exists, a trialcourt must consider the timing of the defendant's request, its effect on the progress of the caseand whether present counsel will likely provide the defendant with meaningful assistance" (People v Linares, 2 NY3d 507,510 [2004]; see People v Porto, 16 NY3d at 100).
Here, when the defendant, who already had at least one prior change of counsel, requestednew counsel at a pretrial calendar call, the County Court (Barbara Kahn, J.) properly determinedthat the defendant's assertions failed to show that substitution of counsel was warranted (seePeople v Ward, 121 AD3d at 1027-1028). During jury selection before a different Judge, thedefendant presented the court with a written motion for substitution of counsel. The CountyCourt (Fernando Camacho, J.) conducted an inquiry into the reasons for the request to assign newcounsel (see People v Porto, 16 NY3d at 100), and determined that the defendant failed todemonstrate good cause for substitution. "[G]ood cause does not exist . . . where, onthe eve of trial, disagreements over trial strategy generate discord" (People v Linares, 2NY3d at 511; see People v Medina, 44 NY2d 199, 208 [1978]). Further, there werestrong indications that the fault for any difficulty in communications between defense counseland the defendant lay with the defendant, who demonstrated hostility toward counsel (seePeople v Linares, 2 NY3d at 511; People v Rua, 198 AD2d 311, 312 [1993]). Underall the circumstances present here, the County Court providently exercised its discretion inrefusing to assign new counsel (see People v Wright, 147 AD3d at 1090; People vWard, 121 AD3d at 1027-1028; People v Rua, 198 AD2d at 312-313).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention raised in his main brief and his pro se supplemental brief that hewas deprived of the effective assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, and, thus, constitutes a "mixed claim ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Mastro, J.P., Miller, Maltese and Wooten, JJ., concur.