People v. Fulgencio

• Decision Date: 30 January 2019
• Docket Number: Ind. No. 14–00747,2016–01636
• Citation: 92 N.Y.S.3d 370,168 A.D.3d 1094
• Parties: The PEOPLE, etc., Respondent, v. Perlagio FULGENCIO, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1094
92 N.Y.S.3d 370

The PEOPLE, etc., Respondent,
v.
Perlagio FULGENCIO, Appellant.

2016–01636
Ind. No. 14–00747

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

Submitted—September 28, 2018
January 30, 2019

Scott M. Bishop, White Plains, NY, for appellant, and appellant pro se.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

168 A.D.3d 1094

ORDERED that the judgment is affirmed.

After a jury trial, the defendant was convicted of assault in the first degree and criminal possession of a weapon in the fourth degree arising out of his stabbing of the victim in the early morning of February 26, 2014. At trial, both the victim and his roommate testified about the events that led up to the stabbing. The victim testified that he was working as a manager at the Woodside Inn, a local neighborhood bar in Mount Vernon. According to the victim and his roommate, the roommate was an experienced bartender and was present at the bar to assist the victim, who was new to the job. Both the victim and the roommate testified that the assigned bartender employed by the bar, who had been on duty that evening, left at about 2:30 a.m., and that the victim, the roommate, and the defendant remained in the bar.

92 N.Y.S.3d 372

According to the victim, when he finished performing his closing duties at approximately 3:15 a.m., he asked the defendant, who had remained in the bar talking with the roommate, to leave. The victim testified that, despite his repeated requests to the defendant over a period of approximately two hours, the defendant refused to leave, and at approximately 5:45 a.m., the victim told the defendant that if he did not leave, the victim would call the police. The defendant then stabbed the victim with a knife multiple times and left the bar. The incident was captured by multiple security cameras in the bar.

"[A]n indigent defendant is guaranteed the right to counsel by both the Federal and New York State Constitutions (see U.S. Const 6th Amend; NY Const, art I, § 6 ), but this entitlement does not encompass the right to counsel of one's own choosing" ( People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 ). Moreover, " ‘[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of

168 A.D.3d 1095

successive lawyers at defendant's option’ " ( People v. King, 161 A.D.3d 772, 774, 77 N.Y.S.3d 70, quoting People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Thus, while a trial court has a duty to investigate complaints concerning counsel, whether to grant substitution lies within "the ‘discretion and responsibility’ of the trial judge" ( People v. Porto, 16 N.Y.3d at 99, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 ; see People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675 ).

Since a court's duty to consider substitution arises "only where a defendant makes a ‘seemingly serious request[ ]’ " ( People v. Porto, 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ), a complaining defendant must make "specific factual allegations of ‘serious complaints about counsel’ " ( People v. Porto, 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 ; see People v. Davis, 161 A.D.3d 1000, 1002, 77 N.Y.S.3d 513 ). Where the defendant meets that burden, the court must make "at least a ‘minimal inquiry’ " to distinguish "meritorious complaints from disingenuous applications" ( People v. Porto, 16...