Opinion
885 KA 19-01907
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Kevin E. DOLISON, Defendant-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, 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 robbery in the second degree ( Penal Law § 160.10 [1] ). We affirm.
Defendant contends that County Court improperly failed to inquire into his requests for a new attorney. "Assuming, arguendo, that [defendant's] contention is not foreclosed by his guilty plea" ( People v. Jeffords , 185 A.D.3d 1417, 1418, 128 N.Y.S.3d 112 [4th Dept. 2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 303, 155 N.E.3d 796 [2020] ), we reject it. Defendant's oral request for a new lawyer was couched in vague and conclusory terms of unspecified coercion and "communication issues," and it is well established that such a request does not "trigger the court's duty to make a minimal inquiry" ( People v. El Hor , 197 A.D.3d 1118, 1120, 150 N.Y.S.3d 619 [2d Dept. 2021], lv denied ––– N.Y.3d –––– [2021]; see People v. MacLean , 48 A.D.3d 1215, 1217, 850 N.Y.S.2d 819 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008], reconsideration denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ; People v. Rodriguez , 28 A.D.3d 403, 404, 813 N.Y.S.2d 429 [1st Dept. 2006], lv denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808 [2006] ). Defendant abandoned his subsequent written request for a new lawyer by pleading guilty before the court could rule on it (see People v. Crosby , 195 A.D.3d 1602, 1604, 149 N.Y.S.3d 729 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 436, 175 N.E.3d 442, 461, 462 [2021]; see also People v. Alexander , 82 A.D.3d 619, 623-624, 920 N.Y.S.2d 47 [1st Dept. 2011], affd 19 N.Y.3d 203, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012] ; People v. Goodison , 196 A.D.3d 1049, 1049, 148 N.Y.S.3d 809 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 785, 178 N.E.3d 432 [2021] ). Contrary to defendant's assertion, the court did not respond to the written request with "an ultimatum ... to either plead guilty with present counsel or proceed to trial with present counsel" ( Crosby , 195 A.D.3d at 1602, 149 N.Y.S.3d 729 [internal quotation marks omitted]; cf. People v. Jones , 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019] ). Indeed, when the court asked defendant if he "want[ed] to be heard" following the submission of his written request, defendant said only "I'm willing to take the plea," and he then pleaded guilty without any further complaint about his lawyer.
The sentence is not unduly harsh or severe. We are nevertheless " ‘compelled to emphasize once again’ that, contrary to the assertion in the People's brief, a criminal defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court in order to obtain a sentence reduction under CPL 470.15 (6) (b)" ( People v. Curtis , 196 A.D.3d 1145, 1146, 147 N.Y.S.3d 922 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 418, 175 N.E.3d 443 [2021] ). Contrary to the People's further contention, " ‘and as we have previously noted, it is [likewise] well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court ..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ " ( People v. Cutaia , 167 A.D.3d 1534, 1535, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019] ; see People v. Alexander , 197 A.D.3d 1013, 1015, 152 N.Y.S.3d 540 [4th Dept. 2021], lv denied 37 N.Y.3d 1094, 156 N.Y.S.3d 771, 178 N.E.3d 418 [2021] ).
Defendant's remaining contentions are unpreserved for appellate review.