PEOPLE v. GREEN (1998)

 The record supports County Court's determination that defendant violated the conditions of his probation by leaving Ontario County without permission, failing to maintain steady employment, and failing to notify his probation officer immediately that he had been arrested for driving while intoxicated.   Contrary to defendant's contention, the violations were sufficiently serious to warrant the revocation of probation and imprisonment (see, People v. Burton, 234 A.D.2d 972, 652 N.Y.S.2d 564, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310).

 The contention of defendant that he was denied the right to call certain witnesses “is not supported by the record, and we will not consider matters outside the record” (People v. Jones, 237 A.D.2d 905, 656 N.Y.S.2d 1013, lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 867, 681 N.E.2d 1314).   The further contention of defendant that he was denied the opportunity to testify is without merit.   At the close of the People's proof, defense counsel informed the court that defendant “will not be testifying.”   The court then adjourned the hearing to permit defense counsel to subpoena two witnesses and, when the hearing resumed one week later, defense counsel rested without calling defendant as a witness.   The court was not required to ask defendant directly whether he wished to testify (see, People v. Fratta, 83 N.Y.2d 771, 772, 610 N.Y.S.2d 947, 632 N.E.2d 1270;  People v. McDonald, 204 A.D.2d 1059, 613 N.Y.S.2d 98, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170).

 The court did not err in denying defendant's request for substitution of counsel at sentencing.  “[D]efendant failed to demonstrate a compelling reason for the substitution or that the substitution was not merely a dilatory tactic” (People v. Jones, supra, at 905, 656 N.Y.S.2d 1013).   The timing of defendant's perfunctory request, made seconds before the court pronounced sentence, “strongly suggests that it was a delaying tactic” (People v. Turner, 232 A.D.2d 256, 665 N.Y.S.2d 631, lv. denied 89 N.Y.2d 947, 655 N.Y.S.2d 898, 678 N.E.2d 511;  see also, People v. Murray, 245 A.D.2d 531, 666 N.Y.S.2d 716, lv. denied 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892).

Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: