People v. Booker

• Decision Date: 20 November 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony BOOKER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1326
20 N.Y.S.3d 832

The PEOPLE of the State of New York, Respondent,
v.
Anthony BOOKER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 20, 2015.

20 N.Y.S.3d 833

Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.

MEMORANDUM:

133 A.D.3d 1326

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). The conviction was based on defendant's possession of various narcotics that were found by parole officers during a search of defendant's residence following a parole violation. Defendant's assigned counsel filed a motion to suppress the seized evidence. On the date of the scheduled suppression hearing, defendant complained to County Court, for the first time, about the quality of assigned counsel's representation and sought to relieve assigned counsel. In expressing his dissatisfaction with assigned counsel, defendant requested that he be allowed to proceed pro se and, upon the court's refusal to relieve assigned counsel, defendant requested an adjournment to permit him to retain new counsel. The court noted that defendant had previously appeared before the court on numerous occasions, but had never mentioned a desire to retain new

133 A.D.3d 1327

counsel because of dissatisfaction with assigned counsel. The court also noted that it had not received any correspondence from the new counsel that defendant claimed to have contacted. The court thus denied defendant's request for an adjournment and, following the suppression hearing at which defendant was represented by assigned counsel, the court denied the suppression motion. Defendant thereafter retained new counsel and entered a guilty plea. We affirm.

Contrary to defendant's contention, he was not denied his constitutional right to proceed pro se. Defendant's request to proceed pro se " ‘was made in the context of a claim expressing his dissatisfaction with his attorney and was not unequivocal’ " (People v. White, 114 A.D.3d 1256, 1257, 980 N.Y.S.2d 678, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 808, 16 N.E.3d 1288 ; see People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 ; People v. Alexander, 109 A.D.3d 1083, 1084, 972 N.Y.S.2d 124 ). In any event, we note that defendant thereafter " ‘abandoned his request to proceed pro se and, instead, requested [an adjournment to retain] new counsel’ " (White, 114 A.D.3d at 1257, 980 N.Y.S.2d 678 ; see People v. Hayden, 250 A.D.2d 937, 938, 672 N.Y.S.2d 538, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 27, 700 N.E.2d 565, reconsideration denied 92 N.Y.2d 982, 683 N.Y.S.2d 764, 706 N.E.2d 752, cert. denied 526 U.S. 1028, 119 S.Ct. 1272, 143...