Opinion
07-03-2024
The PEOPLE of the State of New York, Respondent, v. Errol POTTINGER, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Monroe County Court (Victoria M. Argento, J.), dated December 27, 2018. The order denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting defendant upon a jury verdict of assault in the first degree (two counts), robbery in the first degree (two counts) and robbery in the second degree.
JULIE CIANCA, PUBLIC DEFENDER, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT; WHALEN, P.J., LINDLEY, GREENWOOD, NOWAK, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his CPL 440.10 motion to vacate a judgment convicting him, following a jury trial, of, inter alia, two counts each of assault in the first degree (Penal Law § 120.10 [1], [4]) and robbery in the first degree (§ 160.15 [1], [2]). We affirmed the judgment of conviction (People v. Pottinger, 71 A.D.3d 1492, 895 N.Y.S.2d 913 [4th Dept. 2010], lv denied 15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227 [2010]). On defendant’s appeal from the initial order with respect to his CPL 440.10 motion, we reversed and remitted the matter for a hearing (People v. Pottinger, 156 A.D.3d 1379, 67 N.Y.S.3d 746 [4th Dept. 2017]). Following the hearing, County Court again denied the motion, and we now affirm.
[1, 2] Contrary to defendant’s contention, the court did not err in refusing to substitute new assigned counsel on the motion. The determination whether to substitute counsel lies within the discretion and responsibility of the motion court, which is required to consider a substitution "only where a defendant makes a seemingly serious request[ ]" (People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] [internal quotation marks omitted]; see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]). We conclude that the court properly determined that defendant’s request for a new attorney was not serious. Defendant’s vague assertions did not indicate that there was a serious possibility of good cause for substitution (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. 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]; cf. Sides, 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233; People v. Gibson, 126 A.D.3d 1300, 1302-1303, 6 N.Y.S.3d 198 [4th Dept. 2015]).
[3–5] We further conclude that the court did not err in denying defendant’s request for an adjournment of the hearing to secure testimony from an alleged alibi witness. The determination whether to grant an adjournment is a matter of discretion for the motion court (see generally People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003 [1977]). When seeking an adjournment to procure a witness, it is incumbent on a defendant "to show that the witness’s testimony would be material, noncumulative and favorable to the defense" (People v. Softic, 17 A.D.3d 1075, 1076, 793 N.Y.S.2d 656 [4th Dept. 2005], lv denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005]). Defendant has failed to meet his burden inasmuch as the testimony of that witness would have been cumulative to the testimony of defendant’s trial attorney (see id.). [6, 7] Finally, we reject defendant’s contention that he was denied effective assistance of counsel at trial. " ‘To prevail on a claim of ineffective assistance of counsel, it is incumbent on [the] defendant to demonstrate the absence of strategic or other legitimate explanations’ for defense counsel’s allegedly deficient conduct" (People v. Cleveland, 217 A.D.3d 1346, 1349, 191 N.Y.S.3d 242 [4th Dept. 2023], lv denied 40 N.Y.3d 933, 194 N.Y.S.3d 772, 215 N.E.3d 1213 [2023], lv denied 41 N.Y.3d 942, 206 N.Y.S.3d 256, 229 N.E.3d 1149 [2024], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]). Here, defendant failed to demonstrate the absence of a legitimate explanation for his trial counsel’s failure to pursue an alibi defense (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; People v. Conway, 148 A.D.3d 1739, 1744, 50 N.Y.S.3d 739 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017]).