Opinion
413 KA 17-00279
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Joseph A. DEVALLE, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of one count of criminal sale of a controlled substance in the second degree ( Penal Law § 220.41 [1] ), two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]), and one count of criminal sale of a controlled substance in the third degree (§ 220.39 [1]). Defendant contends that Supreme Court abused its discretion in denying his request for an adjournment to permit defendant's newly-retained attorney time to prepare for trial. Although granting an adjournment is a matter left to the court's discretion, that discretion is more narrowly construed when the right of a defendant to prepare his or her case is involved (see People v. Matthews , 148 A.D.2d 272, 276, 544 N.Y.S.2d 398 [4th Dept. 1989], lv dismissed 74 N.Y.2d 950, 550 N.Y.S.2d 285, 549 N.E.2d 487 [1989] ; see generally People v. Peterkin , 81 A.D.3d 1358, 1360, 921 N.Y.S.2d 744 [4th Dept. 2011], lv denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ). Nevertheless, a defendant may not use the right to counsel of his or her choice as a means to delay the proceedings (see People v. Arroyave , 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980] ; see also People v. O'Daniel , 24 N.Y.3d 134, 138, 996 N.Y.S.2d 580, 21 N.E.3d 209 [2014] ). It is thus "incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his [or her] control and is not simply a dilatory tactic" ( Arroyave , 49 N.Y.2d at 271-272, 425 N.Y.S.2d 282, 401 N.E.2d 393 ; see People v. VanDenBosch , 142 A.D.2d 988, 988-989, 530 N.Y.S.2d 410 [4th Dept. 1988] ). Here, the court granted defendant's request, made 12 days before trial was scheduled to commence, to substitute his newly-retained counsel for the public defender who had represented him up to that point, and defense counsel accepted representation with knowledge of the time constraints (see People v. Comfort , 60 A.D.3d 1298, 1299, 875 N.Y.S.2d 672 [4th Dept. 2009], lv denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ). Further, defendant did not demonstrate that the requested adjournment was necessitated by factors outside his control (see People v. Povio , 284 A.D.2d 1011, 1011, 725 N.Y.S.2d 784 [4th Dept. 2001], lv denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ). Considering "the reasonableness of the trial court's decision in light of all the existing circumstances" ( Arroyave , 49 N.Y.2d at 272, 425 N.Y.S.2d 282, 401 N.E.2d 393 ), we conclude that the court did not abuse its discretion in denying defendant's request for an adjournment (see Povio , 284 A.D.2d at 1011, 725 N.Y.S.2d 784 ; cf. VanDenBosch , 142 A.D.2d at 989, 530 N.Y.S.2d 410 ).
Defendant's related contention that his guilty plea was not knowingly, voluntarily, and intelligently entered is not preserved for our review inasmuch as defendant did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Brinson , 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ; People v. Laney , 117 A.D.3d 1481, 1482, 984 N.Y.S.2d 727 [4th Dept. 2014] ).
Finally, defendant's sentence is not unduly harsh or severe.