Opinion
362 KA 18-00614
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Jamel RAGHNAL, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, 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 plea of guilty of arson in the second degree ( Penal Law § 150.15 ), burglary in the second degree (§ 140.25 [2] ), and criminal mischief in the fourth degree (§ 145.00 [1] ). At the outset, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ).
Defendant contends that County Court failed to conduct the requisite inquiry into his complaints regarding his assigned counsel. Although "[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option ..., the right to be represented by counsel of one's own choosing is a valued one, and a defendant may be entitled to new assigned counsel upon showing ‘good cause for substitution’ " ( People v. Sides , 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). Thus, trial courts are required to conduct "at least a ‘minimal inquiry’ " when a defendant requests substitution of counsel and voices " ‘seemingly serious’ " complaints about his or her assigned counsel ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010], quoting Sides , 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Edwards , 173 A.D.3d 1615, 1616, 102 N.Y.S.3d 354 [4th Dept. 2019] ).
Here, defendant sent letters to the court on January 23, 2017 and March 28, 2017, each containing allegations of various shortcomings in assigned counsel's performance. Neither of those letters, however, contained a request that the court provide defendant with substitute counsel, and thus defendant, through those letters, failed to preserve his contention for review (see generally People v. Alexander , 132 A.D.3d 1412, 1413, 17 N.Y.S.3d 667 [4th Dept. 2015], lv denied 27 N.Y.3d 1148, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ). In any event, the record establishes that the court sufficiently inquired into defendant's complaints at a subsequent appearance on March 31, 2017, and ensured that defendant and defense counsel had resolved the alleged issues that had been raised in the January 23, 2017 and March 28, 2017 letters.
Defendant thereafter sent another letter to the court on April 11, 2017, again raising certain complaints regarding counsel's performance. Like the prior letters, however, defendant did not request that the court assign substitute counsel, and thus the April 11, 2017 letter failed to preserve the issue for review (see generally Alexander , 132 A.D.3d at 1413, 17 N.Y.S.3d 667 ). In any event, even if defendant had requested substitute counsel in that letter, defendant "failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" ( Porto , 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see generally Edwards , 173 A.D.3d at 1616, 102 N.Y.S.3d 354 ).
In May 2017, and as the scheduled date of defendant's trial approached, defendant sent two additional letters to the court. Those letters, however, did not contain a request that the court assign substitute counsel, and instead indicated that, in defendant's estimation, he and his attorney were not ready for trial. Likewise, at the next court appearance, at which defendant ultimately pleaded guilty, defendant requested an adjournment of the scheduled trial, but did not request substitute counsel. Thus, defendant's letters of May 2017 and his statements at the following court appearance did not preserve his contention for review "inasmuch as the record reflects that both defendant and the court understood that defendant sought an adjournment ... and did not request new assigned counsel" ( People v. Johnson , 94 A.D.3d 1496, 1497, 942 N.Y.S.2d 741 [4th Dept. 2012], affd 20 N.Y.3d 990, 960 N.Y.S.2d 55, 983 N.E.2d 1239 [2013] ; see generally Alexander , 132 A.D.3d at 1413, 17 N.Y.S.3d 667 ).
We reject defendant's further contention that the court abused its discretion in denying his request for an adjournment. It is well settled that "[t]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v. Resto , 147 A.D.3d 1331, 1332, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] [internal quotation marks omitted] ), and defendant made no such showing here, inasmuch as he makes only a general assertion that he and his attorney required additional time to prepare his defense (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] ).
We likewise reject defendant's contention that the court erred in denying his motion to withdraw his guilty plea on the ground of ineffective assistance of counsel. The court properly denied the motion inasmuch as, aside from defendant's unsupported allegations of deficient representation, " ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ " ( People v. Watkins , 77 A.D.3d 1403, 1404, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ; see generally People v. Kurkowski , 117 A.D.3d 1442, 1443-1444, 984 N.Y.S.2d 761 [4th Dept. 2014] ). Defendant's further contention that the plea should be vacated based on the court's purported misstatement of defendant's possible sentencing exposure is not preserved for our review because defendant failed to move to withdraw his plea on that ground (see generally People v. Carlisle , 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ). Defendant's sentence is not unduly harsh or severe. We agree with defendant, however, that the certificate of conviction incorrectly reflects that defendant was convicted of two counts of criminal mischief in the fourth degree, and it must therefore be amended to reflect that he was convicted of only one count of criminal mischief in the fourth degree.