Opinion
338 KA 12–00161
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Eugene FRENCH, Defendant–appellant.
BETH A. RATCHFORD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
BETH A. RATCHFORD, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2 ] ). Defendant contends that County Court failed to conduct a proper inquiry into his request for substitution of counsel. We reject that contention. The court made the requisite "minimal inquiry" into defendant's claims before making a determination that there was no good cause for substitution of counsel ( People v. Small, 166 A.D.3d 1471, 1471, 88 N.Y.S.3d 316 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 607, 121 N.E.3d 235 [2019] ; see People v. Smith, 18 N.Y.3d 588, 592–593, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Bradford, 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ).
Defendant's first ground for seeking substitution, i.e., that the District Attorney assigned an Assistant Public Defender to represent him as defense counsel, " ‘did not suggest a serious possibility of good cause for substitution’ " ( People v. Burdine, 147 A.D.3d 1471, 1473, 47 N.Y.S.3d 591 [4th Dept. 2017], amended on rearg 149 A.D.3d 1626, 51 N.Y.S.3d 468 [4th Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ). Defendant's second ground for seeking substitution was based on "vague assertions" that defense counsel did not contact him or visit him more often ( 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] ; see People v. Benson, 265 A.D.2d 814, 814–815, 697 N.Y.S.2d 222 [4th Dept. 1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000] ), and likewise " ‘did not suggest a serious possibility of good cause for substitution’ " ( Burdine, 147 A.D.3d at 1473, 47 N.Y.S.3d 591 ). Defendant's final ground for seeking substitution was that he disagreed with defense counsel's strategic decision not to have him testify before the grand jury. It is well settled, however, that disagreement on matters of strategy does not constitute good cause for substitution of counsel (see Smith, 18 N.Y.3d at 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Holmes, 284 A.D.2d 984, 984, 728 N.Y.S.2d 611 [4th Dept. 2001], lv denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662 [2001] ; see also People v. Hogan, 26 N.Y.3d 779, 781, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ).
Inasmuch as defendant's three claims do not establish good cause for substitution of counsel, and inasmuch as there was nothing in the record before the court to establish that defense counsel would not have been "reasonably likely to afford ... defendant effective assistance" of counsel ( People v. Medina, 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ), we conclude that the court did not abuse its discretion in denying defendant's request (see People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).