Opinion
2013-12-26
The PEOPLE, etc., respondent, v. Antwan HARRISON, appellant.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Brennan, J.), imposed June 4, 2012, upon his conviction of assault in the first degree (two counts) and criminal possession of a weapon in the second degree, the resentence being a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on October 24, 2000.
ORDERED that the resentence is affirmed.
“[A] defendant has the constitutionally guaranteed right to be defended by counsel of his own choosing” (People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393; see People v. Martin, 41 A.D.3d 616, 616, 838 N.Y.S.2d 166; People v. Stevenson, 36 A.D.3d 634, 634, 831 N.Y.S.2d 74). However, “this right is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings” (People v. Arroyave, 49 N.Y.2d at 271, 425 N.Y.S.2d 282, 401 N.E.2d 393). The question of whether a continuance should be granted to afford a defendant the opportunity to retain counsel of his or her choosing is a matter largely within the discretion of the court ( see id.). “[W]hether a defendant has been denied his right to retain counsel of his own choosing can only be answered by examining the particular facts of each case” ( id.). Contrary to the defendant's contention, under the particular circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendant's request, made as resentencing commenced ( see generally id.; People v. Allison, 69 A.D.3d 740, 741, 892 N.Y.S.2d 516; People v. Campbell, 54 A.D.3d 959, 959–960, 863 N.Y.S.2d 827; People v. Goodwine, 46 A.D.3d 702, 702, 848 N.Y.S.2d 243; People v. Persad, 306 A.D.2d 359, 359, 760 N.Y.S.2d 673), in effect, for an adjournment to retain private counsel.
“Inasmuch as the defendant had not yet completed serving his originally imposed sentence of imprisonment when he was resentenced, his resentencing to a term including the statutorily required period[s] of postrelease supervision did not violate the double jeopardy and due process clauses of the United States Constitution” (People v. Hernandez, 110 A.D.3d 918, 919, 972 N.Y.S.2d 913; see People v. Lingle, 16 N.Y.3d 621, 630–632, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Jiggetts, 108 A.D.3d 641, 641, 968 N.Y.S.2d 385; People v. Wheeler, 108 A.D.3d 646, 646, 968 N.Y.S.2d 382, lv. denied21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152; People v. Dawkins, 87 A.D.3d 550, 550, 927 N.Y.S.2d 797; People v. Harris, 86 A.D.3d 543, 543–544, 926 N.Y.S.2d 319).
The resentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).