People v. Rolfe

• Decision Date: 14 April 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.James ROLFE, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1219

920 N.Y.S.2d 856

2011 N.Y. Slip Op. 02973

The PEOPLE of the State of New York, Respondent,

v.James ROLFE, Appellant.

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

April 14, 2011.

Sandra M. Colatosti, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: SPAIN, J.P., STEIN, McCARTHY, GARRY and EGAN JR., JJ.GARRY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 23, 2009, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

After violating an order of protection, defendant was indicted on charges of criminal contempt in the first degree, grand larceny in the fourth degree, and endangering the welfare of a child. A few days prior to the date scheduled for commencement of trial, defendant's counsel wrote to County Court requesting the assignment of new counsel because of a “complete breakdown in communication” between defendant and himself. The court denied the request on the grounds that no basis for such relief had been stated and because of the proximity of trial. Defendant subsequently pleaded guilty to criminal contempt in the first degree in satisfaction of all charges. He waived his right to appeal and was sentenced to a prison term of 1 1/2 to 3 years, to run concurrently with any sentence imposed in a separate criminal action then pending against him ( People v. Rolfe, ––– A.D.3d –––– [decided herewith] ). Defendant appeals.

Defendant's sole contention is that his constitutional right to be represented by the counsel of his choice was violated by County Court's alleged failure to make an adequate inquiry into the basis of the request for substitute counsel ( see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]; People v. Brown, 62 A.D.3d 1089, 1092, 878 N.Y.S.2d 515 [2009], lvs. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ). This claim survives defendant's waiver of the right to appeal only to the extent that it implicates the voluntariness of his plea ( see People v. Pump, 67 A.D.3d 1041, 1041, 889 N.Y.S.2d 105 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010]; People v. Williams, 6 A.D.3d 746, 747, 776 N.Y.S.2d 329 [2004], lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004] ). This claim is further unpreserved, as defendant failed to move to withdraw his plea ( see CPL 220.60[3] ) or to vacate the judgment of conviction ( see CPL 440.10; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), and, in any event, it is without merit.

Whether good cause exists to grant an indigent defendant's request for the appointment of substitute counsel depends on, among other things, “ ‘the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance’ ” ( People v. Malcolm, 74 A.D.3d 1483, 1486, 902 N.Y.S.2d 264 [2010], lv. denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010], quoting People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ). Here, defendant's counsel, rather than defendant himself, requested the substitution, without indicating that he was acting at defendant's instruction ( compare People v. Malcolm, 74 A.D.3d at 1487, 902 N.Y.S.2d 264; People v. Smith, 231 A.D.2d 815, 816, 647 N.Y.S.2d 583 ...