Opinion
665 KA 19-02350
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Hugh SMITH, also Known as Hugh D. Smith, Jr., Defendant-Appellant. (Appeal No. 1.)
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). In appeal No. 2, he appeals from a judgment convicting him, also upon his plea of guilty, of attempted promoting prison contraband in the first degree ( §§ 110.00, 205.25 [2] ). We agree with defendant that his waiver of the right to appeal in each appeal is invalid because Supreme Court "mischaracterized it as an ‘absolute bar’ to the taking of an appeal" ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Brooks , 187 A.D.3d 1587, 1588, 133 N.Y.S.3d 690 [4th Dept. 2020], lv denied 36 N.Y.3d 1049, 140 N.Y.S.3d 875, 164 N.E.3d 962 [2021] ).
Defendant failed to preserve for our review his contention in appeal No. 1 that the court erred in assigning new counsel to replace his initial assigned attorney (see People v. Triplett , 149 A.D.3d 1592, 1593, 149 A.D.3d 1592 [4th Dept. 2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 11, 85 N.E.3d 106 [2017] ; see generally People v. Tineo , 64 N.Y.2d 531, 535-536, 490 N.Y.S.2d 159, 479 N.E.2d 795 [1985] ). In any event, the court did not abuse its discretion in replacing that attorney. Although a defendant has the right to continue to be represented by an assigned attorney with whom the defendant has developed a professional relationship, and courts may not interfere with that right arbitrarily (see People v. Knowles , 88 N.Y.2d 763, 766, 650 N.Y.S.2d 617, 673 N.E.2d 902 [1996] ; see also People v. Arroyave , 49 N.Y.2d 264, 270, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980] ), "[t]he right to counsel of choice ... is not absolute. A criminal defendant does not have a categorical right to insist that a retained or assigned attorney continue to represent him" or her ( People v. Childs , 247 A.D.2d 319, 325, 670 N.Y.S.2d 4 [1st Dept. 1998], lv denied 92 N.Y.2d 849, 677 N.Y.S.2d 79, 699 N.E.2d 439 [1998] ). Furthermore, it is well settled that trial courts generally have broad discretion to substitute counsel (see People v. Robinson , 121 A.D.3d 1179, 1180, 994 N.Y.S.2d 711 [3d Dept. 2014] ), and " ‘[t]hat discretion is especially broad when the defendant's actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review’ " ( People v. Watson , 26 N.Y.3d 620, 624, 26 N.Y.S.3d 504, 46 N.E.3d 1057 [2016], quoting Tineo , 64 N.Y.2d at 536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ). It is also well settled that a defendant's right to be represented by counsel of his or her choosing "may be overcome by demonstration of an actual conflict or a serious potential for conflict" ( id. at 625, 26 N.Y.S.3d 504, 46 N.E.3d 1057 ). Here, the court properly determined that counsel had an actual conflict of interest based on his representation of a witness who was planning to testify against defendant, and thus the court did not abuse its discretion in replacing that attorney with new counsel (see generally id. at 624-625, 26 N.Y.S.3d 504, 46 N.E.3d 1057 ; People v. Carncross , 14 N.Y.3d 319, 326-330, 901 N.Y.S.2d 112, 927 N.E.2d 532 [2010] ).
Defendant's sentence in each appeal is not unduly harsh or severe. Defendant's remaining contention in appeal No. 2 is academic in light of our determination.