People v. Gibson

• Decision Date: 25 November 1981
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander GIBSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 762

444 N.Y.S.2d 762

84 A.D.2d 885

The PEOPLE of the State of New York, Respondent, v. Alexander GIBSON, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 25, 1981.

Edward P. Ryan, Albany, for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (F. Patrick Jeffers, Albany, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered May 6, 1980, convicting defendant upon his pleas of guilty of two counts of the crime of robbery in the second degree.

Defendant was charged with robbery in the second degree for his involvement in a robbery committed at Annie's Variety Store in the City of Albany. He had been represented by counsel throughout including an unsuccessful hearing to suppress certain statements. On the day of trial, defendant, for the first time, requested that his appointed counsel be dismissed and that he be allowed to retain counsel of his own choice. The trial court denied the application for a change of counsel and, upon defendant's insistence, discharged his appointed counsel and allowed him to proceed pro se. Following the commencement of the trial and the presentation of the People's case, defendant entered a plea of guilty of robbery in the second degree in full satisfaction of the indictment. He also entered a plea of guilty to a reduced charge of robbery in the second degree in full satisfaction of an unrelated indictment. He was sentenced as a second felony offender to concurrent indeterminate terms of imprisonment, each with a maximum term of 15 years and a minimum of 7 1/2 years. Both sentences were consecutive to a previously imposed sentence on a February, 1980 conviction. This appeal ensued.

Initially, we note that the trial court properly denied defendant's request for a change of counsel. The constitutionally guaranteed right to defense by counsel of one's choosing may not be employed as a tactical device to delay judicial proceedings (People v. Arroyave, 49 N.Y.2d 264, 425 N.Y.S.2d 282, 401 N.E.2d 393; People v. Fruehwirth, 83 A.D.2d 975, 442 N.Y.S.2d 819). Since defendant's request for a change of counsel was not made until immediately prior to commencement of the jury selection and was made without sufficient explanation on defendant's part, we find no abuse of discretion in the court's refusal to grant defendant's request (see People v. Medina, 44 N.Y.2d 199, 404 N.Y.S.2d 588, 375 N.E.2d 768). Moreover, defendant had an absolute right to proceed pro se, notwithstanding his lack of legal expertise (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; People v. Davis, 49 N.Y.2d 114, 119, 424 N.Y.S.2d 372, 400 N.E.2d 313). Despite adequate explanation by the trial court of the consequences of proceeding without counsel, defendant refused to allow assigned counsel to remain with him during the trial. Under these circumstances, we cannot say that the court erred in allowing defendant to pursue his pro se defense.

Next, defendant contends that he reaffirmed his plea of guilty at the sentencing hearing only after the court erroneously advised him concerning the merging of the minimum sentences. Accordingly, he argues that the sentence should be vacated. At the time each plea was...