PEOPLE v. BERGER (2025)

Judgment, Supreme Court, New York County (Abraham L. Clott, J.), rendered November 1, 2023, convicting defendant, upon his plea of guilty, of attempted assault in the first degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

Defendant asks this Court to reduce his sentence due to the alleged deprivation of his right to counsel.  Specifically, defendant argues that Supreme Court's denial of his requests for substitution of counsel prevented him from availing himself of an earlier offer by the People of a lesser term of incarceration.  Defendant expressly declines to challenge his conviction by arguing that his ultimate plea (with counsel whom defendant had requested be relieved) was not voluntarily entered, or that counsel was ineffective in his representation.

The court providently exercised its discretion in denying defendant's requests for substitution of counsel (see People v. Fredericks, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 01011, *3 [2025]).  Before two separate judges, defendant alleged that he did not trust counsel and had difficulty getting in touch with him, but he declined to provide specific examples of substandard representation, despite each judge pressing him for additional information.  These vague complaints amounted to “disagreement over strategy or personal dislike” (People v. Newell, 200 A.D.2d 451, 607 N.Y.S.2d 235 [1st Dept. 1994]) and “conclusory allegations of inadequate communication” (People v. Estwick, 266 A.D.2d 123, 124, 698 N.Y.S.2d 668 [1st Dept. 1999], lv denied 94 N.Y.2d 918, 708 N.Y.S.2d 358, 729 N.E.2d 1157 [2000]).  Thus, no deprivation of the right to effective counsel warrants any reduction in defendant's sentence.

We note that were this Court to conclude that Supreme Court improvidently denied defendant's request for new counsel, the appropriate remedy would be vacatur of the conviction, which defendant explicitly does not seek (People v. Sides, 75 N.Y.2d 822, 824–25, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990];  see People v. Rodriguez, 46 A.D.3d 396, 397, 848 N.Y.S.2d 94 [1st Dept. 2007], lv denied 10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008]).

We perceive no basis for reducing defendant's sentence.  We have considered defendant's remaining arguments and find them unavailing.