Opinion
2018–14256 Ind. No. 17–00693
02-17-2021
The PEOPLE, etc., respondent, v. Fredys Gutierrez ZOMORA, appellant.
Richard L. Herzfeld, New York, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel; Alexander Ochoa on the brief), for respondent.
Richard L. Herzfeld, New York, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel; Alexander Ochoa on the brief), for respondent.
LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered May 8, 2018, convicting him of attempted assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the County Court improvidently exercised its discretion in denying, without further inquiry, his request for new assigned counsel. While an indigent defendant is guaranteed the right to counsel by both the Federal and New York State Constitutions (see U.S. Const 6th Amend; NY Const, art I, § 6 ), "this entitlement does not encompass the right to counsel of one's own choosing" ( People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 ). Thus, the defendant's request that the court assign a particular individual as his attorney was properly denied.
To the extent that the defendant was requesting to have his counsel substituted even if he could not have the attorney of his choice, when a defendant's request to substitute counsel "on its face suggests a serious possibility of irreconcilable conflict with defense counsel, the trial court is obliged to make some minimal inquiry to determine whether the request has a genuine basis" ( People v. Stevens, 162 A.D.3d 1077, 1077, 75 N.Y.S.3d 539 ; see People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Here, however, the defendant failed to set forth "specific factual allegations of ‘serious complaints about counsel,’ " so as to trigger the court's duty to make a minimal inquiry ( People v. Porto, 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 ; see People v. Hayes, 179 A.D.3d 835, 835, 113 N.Y.S.3d 906 ; People v. Stevens, 162 A.D.3d at 1077, 75 N.Y.S.3d 539 ).
Accordingly, the County Court did not improvidently exercise its discretion in denying the defendant's substitution request without further inquiry.
AUSTIN, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.