| People v DeValle |
| 2021 NY Slip Op 02929 [194 AD3d 1411] |
| May 7, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph A. DeValle, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Helen Syme of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered December 6, 2016. The judgment convicted defendant upon a plea of guilty of criminalsale of a controlled substance in the second degree, criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea ofone count of criminal sale of a controlled substance in the second degree (Penal Law§ 220.41 [1]), two counts of criminal possession of a controlled substance in thethird degree (§ 220.16 [1]), and one count of criminal sale of a controlled substancein the third degree (§ 220.39 [1]). Defendant contends that Supreme Court abusedits discretion in denying his request for an adjournment to permit defendant's newly-retainedattorney time to prepare for trial. Although granting an adjournment is a matter left to the court'sdiscretion, that discretion is more narrowly construed when the right of a defendant to prepare hisor her case is involved (see People v Matthews, 148 AD2d 272, 276 [4th Dept 1989],lv dismissed 74 NY2d 950 [1989]; see generally People v Peterkin, 81 AD3d 1358, 1360 [4th Dept2011], lv denied 17 NY3d 799 [2011]). Nevertheless, a defendant may not use the rightto counsel of his or her choice as a means to delay the proceedings (see People vArroyave, 49 NY2d 264, 271 [1980]; see also People v O'Daniel, 24 NY3d 134, 138 [2014]). It is thus"incumbent upon the defendant to demonstrate that the requested adjournment has beennecessitated by forces beyond his [or her] control and is not simply a dilatory tactic"(Arroyave, 49 NY2d at 271-272; see People v VanDenBosch, 142 AD2d 988,988-989 [4th Dept 1988]). Here, the court granted defendant's request, made 12 days before trialwas scheduled to commence, to substitute his newly-retained counsel for the public defenderwho had represented him up to that point, and defense counsel accepted representation withknowledge of the time constraints (seePeople v Comfort, 60 AD3d 1298, 1299 [4th Dept 2009], lv denied 12 NY3d924 [2009]). Further, defendant did not demonstrate that the requested adjournment wasnecessitated by factors outside his control (see People v Povio, 284 AD2d 1011, 1011[4th Dept 2001], lv denied 96 NY2d 923 [2001]). Considering "the reasonableness of thetrial court's decision in light of all the existing circumstances" (Arroyave, 49 NY2d at272), we conclude that the court did not abuse its discretion in denying defendant's request for anadjournment (see Povio, 284 AD2d at 1011; cf. VanDenBosch, 142 AD2d at989).
Defendant's related contention that his guilty plea was not knowingly, voluntarily, andintelligently entered is not preserved for our review inasmuch as defendant did not move towithdraw his plea or to vacate the judgment of conviction (see People v Brinson, 130 AD3d 1493, 1493 [4th Dept 2015], lvdenied 26 NY3d 965 [2015]; Peoplev Laney, 117 AD3d 1481, 1482 [4th Dept 2014]).
[*2] Finally, defendant's sentence is not unduly harsh or severe.Present—Carni, J.P., Lindley, NeMoyer, Curran and Bannister, JJ.