People v. Brown

• Decision Date: 05 October 2017
• Citation: 154 A.D.3d 1004,61 N.Y.S.3d 717
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew L. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1004
61 N.Y.S.3d 717

The PEOPLE of the State of New York, Respondent,
v.
Andrew L. BROWN, Appellant.

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

Oct. 5, 2017.

61 N.Y.S.3d 718

John A. Cirando, Syracuse, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

61 N.Y.S.3d 719

Before: PETERS, P.J., McCARTHY, ROSE, MULVEY and RUMSEY, JJ.

PETERS, P.J.

154 A.D.3d 1004

Appeal from a judgment of the County Court of

154 A.D.3d 1005

Broome County (Cawley Jr., J.), rendered February 2, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Defendant pleaded guilty as charged to robbery in the second degree. Prior to sentencing, he moved to withdraw his plea. County Court denied the motion without a hearing and thereafter sentenced defendant, as a second felony offender, to the agreed-upon prison term of five years, to be followed by five years of postrelease supervision. Defendant now appeals and we affirm.

We reject defendant's contention that County Court erred in denying his request for substitute counsel. Defendant initially asked for new counsel at a postindictment appearance and County Court granted the request. At subsequent appearances following the substitution of counsel, new counsel raised concerns regarding being able to communicate with defendant and defendant again requested a substitution of counsel. Defendant informed County Court that the rift with counsel centered around defendant's belief that he had an affirmative defense to the crime of robbery in the first degree and requested that counsel pursue such a defense with motions and by providing him with certain written legal materials that support such defense. County Court fully explained that defendant was not charged with that crime so any actions in defense to that charge would be frivolous and, citing counsel's experience and capability, denied the request on the ground that defendant had not proffered good cause to justify another substitution of counsel.

The right to representation by counsel "does not encompass a right to appointment of successive lawyers at [the] defendant's option," but "the right to be represented by counsel of one's choosing is a valued one, and a defendant may be entitled to new assigned counsel upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel" ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] [internal quotation marks and citation omitted]; see People v. Gutek, 151 A.D.3d 1281, 1282, 58 N.Y.S.3d 164 [2017] ). "Good cause determinations are necessarily case-specific and therefore fall within the discretion of the trial court" ( People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] [internal quotation marks and citation omitted]; see People v. Smith, 18 N.Y.3d 588, 592, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Toledo, 144 A.D.3d 1332, 1333–1334, 40 N.Y.S.3d 680 [2016], lv. denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). Among the factors that County Court may assess when considering the substitution of counsel is "whether present counsel is reasonably likely to afford a defendant effective assistance" ( People v. Smith, 18 N.Y.3d at 592, 942 N.Y.S.2d 5, 965 N.E.2d 232

154 A.D.3d 1006

internal quotation marks and citation omitted] ). Here, defendant's claims regarding counsel's failure to pursue a potential defense to an uncharged crime does not establish good cause for substitution of counsel. Further, defendant did not demonstrate that the communication problems between himself and counsel amounted to an irreconcilable conflict warranting substitution. Accordingly, County Court's denial of defendant's request for new counsel was not an abuse of discretion (see People v. Smith, 18 N.Y.3d at 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 ;

[61 N.Y.S.3d 720

People v. Linares, 2 N.Y.3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; People v. Breedlove, 61 A.D.3d 1120, 1121, 878 N.Y.S.2d 465 [2009], lv. denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ).

Defendant also contends that he was denied the effective assistance of counsel. Although this argument was preserved for our review by defendant's motion to withdraw his plea, we find it to be without...