Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Daniel S. UBBINK, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of one count of stalking in the fourth degree (Penal Law § 120.45[2] ) and four counts of criminal contempt in the second degree (§ 215.50[3] ). Contrary to defendant's contention, he was not denied due process based on Supreme Court's failure, sua sponte, to conduct a competency hearing pursuant to CPL 730.30(2) ( see People v. Chicherchia, 86 A.D.3d 953, 954, 926 N.Y.S.2d 795,lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027). “A defendant is presumed competent ..., and the court is under no obligation to issue an order of examination ... unless it has ‘reasonable ground ... to believe that the defendant [is] an incapacitated person’ ” ( People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260). Where the court has “ ‘reasonable ground for believing that a defendant is in such state of idiocy, imbecility, or insanity that he [or she] is incapable of understanding the charge, indictment or proceedings or of making his [or her] defense,’ ” it must direct that the defendant be examined ( People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87,cert. denied528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80). “[T]he decision to order a competency examination ... lies within the sound discretion of the trial court” ( People v. Williams, 35 A.D.3d 1273, 1274, 825 N.Y.S.2d 862,lv. denied8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465). There is no indication in the record that the court “ ‘receive[d] information which, objectively considered, should reasonably have raised a doubt about defendant's competency and alerted [the court] to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense’ ” so as to warrant a competency examination, much less a competency hearing ( People v. Arnold, 113 A.D.2d 101, 103, 495 N.Y.S.2d 537).
We reject the further contention of defendant that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. Tuszynski, 71 A.D.3d 1407, 1408, 895 N.Y.S.2d 896,lv. denied15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904;People v. Lewis, 67 A.D.3d 1396, 1396–1397, 888 N.Y.S.2d 814,lv. denied14 N.Y.3d 772, 898 N.Y.S.2d 104, 925 N.E.2d 109). Also without merit is defendant's contention that the court abused its discretion when it denied defendant's repeated requests for new counsel during the trial. “The 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” ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233;see People v. Kirkland, 177 A.D.2d 946, 946–947, 577 N.Y.S.2d 987,lv. denied79 N.Y.2d 859, 580 N.Y.S.2d 731, 588 N.E.2d 766). Rather, defendant must demonstrate good cause for the substitution, “such as a conflict of interest or other irreconcilable conflict with counsel” ( Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233;see People v. Medina, 44 N.Y.2d 199, 207–208, 404 N.Y.S.2d 588, 375 N.E.2d 768). Prior to trial, the court twice granted defendant's request for new counsel. The court did not abuse its discretion in denying defendant's mid-trial requests for the appointment of new trial counsel inasmuch as defendant failed to demonstrate good cause for the substitution ( see People v. Sawyer, 57 N.Y.2d 12, 19, 453 N.Y.S.2d 418, 438 N.E.2d 1133,rearg. dismissed57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343,cert. denied459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.