Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Yadiel CORREA, Defendant–Appellant.
Robert A. Dinieri, Clyde, for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
Robert A. Dinieri, Clyde, for Defendant–Appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and conspiracy in the fourth degree (§ 105.10[1] ), defendant contends that County Court erred in denying his request for a substitution of counsel. It is well settled that "[t]he decision to allow a defendant to substitute counsel is largely within the discretion of the court to which the application is made" (People v. Jackson, 85 A.D.3d 1697, 1699, 925 N.Y.S.2d 746, lv. denied 17 N.Y.3d 817, 929 N.Y.S.2d 806, 954 N.E.2d 97 [internal quotation marks omitted]; see People v. Stevenson, 36 A.D.3d 634, 634, 831 N.Y.S.2d 74, lv. denied 8 N.Y.3d 927, 834 N.Y.S.2d 518, 866 N.E.2d 464 ), and here, we conclude that the court did not abuse its discretion in denying defendant's request.
Contrary to defendant's contention, the court did not err in denying the request for substitution without making further inquiry into the reasons for the request. A "court's duty to consider such a motion is invoked only where a defendant makes a ‘seemingly serious request[ ]’ ... Therefore, it is incumbent upon a defendant to make specific factual allegations of ‘serious complaints about counsel’ " in support of his or her motion (People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ). Here, to the contrary, "[f]urther inquiry was not required because [defendant']s conclusory assertions did not suggest the serious possibility of a genuine conflict of interest" (Stevenson, 36 A.D.3d at 635, 831 N.Y.S.2d 74 ; see People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755, lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 ; People v. Boswell, 117 A.D.3d 1493, 1494, 984 N.Y.S.2d 734, lv. denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 ). In any event, defendant abandoned his request when he " ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " (People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438, lv. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 ; see Boswell, 117 A.D.3d at 1494, 984 N.Y.S.2d 734 ; see also People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803, lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981, cert. denied 565 U.S. 910, 132 S.Ct. 318, 181 L.Ed.2d 196 ).Finally, we note that the certificate of conviction contains a typographical error inasmuch as it incorrectly reflects that defendant was sentenced to an indeterminate term of imprisonment of 1 to 3 years on the conspiracy count, whereas the parties agree, and the sentencing minutes reflect, that he was sentenced to 1 ½ to 3 years on that count. The certificate of conviction therefore must be amended to correct that error (see generally People v. Kemp, 112 A.D.3d 1376, 1377, 977 N.Y.S.2d 536 ; People v. Smoke, 43 A.D.3d 1332, 1333, 843 N.Y.S.2d 875, lv. denied 9 N.Y.3d 1039, 852 N.Y.S.2d 24, 881 N.E.2d 1211 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.