PEOPLE v. HERNANDEZ (2009)

Judgment, Supreme Court, New York County (Maxwell Wiley, J. at request for new counsel;  Edwin Torres, J. at jury trial and sentence), rendered September 11, 2007, convicting defendant of robbery in the first and second degrees, and sentencing her, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

 Since defendant withdrew her request for a new attorney, she waived her present claim that the court should have assigned new counsel.   There is no support in the record for her argument that the attorney influenced her to withdraw her motion.   In any event, as an alternative holding, we conclude that there is no basis for reversal.   Defendant concedes that her boilerplate motion did not establish good cause for a substitution, but argues that “an irreconcilable conflict had developed as soon as counsel called his client a liar.”   However, the conduct of counsel characterized as “calling his client a liar” consisted of the attorney's permissible defense of his own performance (see People v. Nelson, 7 N.Y.3d 883, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006] ), in which he described defendant's allegations as “inaccurate,” “incorrect,” and “misleading.”   Counsel appropriately brought these inaccuracies to the court's attention (see People v. DePallo, 96 N.Y.2d 437, 441-442, 729 N.Y.S.2d 649, 754 N.E.2d 751 [2001] ).   Moreover, counsel did not accuse his client of perjury or falsehood, impugn her credibility before a trier of fact (compare People v. Berroa, 99 N.Y.2d 134, 753 N.Y.S.2d 12, 782 N.E.2d 1148 [2002];  People v. Darrett, 2 A.D.3d 16, 769 N.Y.S.2d 14 [2003] ), or demonstrate any inability to continue providing effective assistance.

Defendant's challenge to the constitutionality of her adjudication as a persistent violent felony offender is not preserved for our review (People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ), and we decline to review it in the interest of justice.   As an alternative holding, we conclude that it is without merit (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998];  People v. Leon, 10 N.Y.3d 122, 126, 855 N.Y.S.2d 38, 884 N.E.2d 1037 [2008], cert. denied 554 U.S. ----, 128 S.Ct. 2976, 171 L.Ed.2d 900 [2008] ).