PEOPLE v. ENGLAND (2005)

Judgment, Supreme Court, New York County (Carol Berkman, J. on motion for new counsel;  Jeffrey M. Atlas, J. on renewed motion and at jury trial and sentence), rendered March 25, 2003, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 The motion court properly denied defendant's initial motion for assignment of new counsel since his papers lacked specific factual allegations supporting his complaints about his attorney and did not contain any serious complaint requiring an inquiry by the court (see People v. Sides, 75 N.Y.2d 822, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990];  People v. Paniagua, 17 A.D.3d 123, 791 N.Y.S.2d 821 [2005] ).   Defendant did not have a right to be present at the calendar call at which the court denied the motion, since the court was simply placing on the record the decision it had already made on defendant's written submissions (see People v. Horne, 97 N.Y.2d 404, 416, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  People v. Espinal, 216 A.D.2d 253, 629 N.Y.S.2d 226 [1995], lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606 [1995] ).   Moreover, defendant had numerous opportunities to expand on these submissions at subsequent court appearances (see People v. Husbands, 303 A.D.2d 227, 756 N.Y.S.2d 553 [2003], lv. denied 100 N.Y.2d 562, 763 N.Y.S.2d 819, 795 N.E.2d 45 [2003] ).

 After an appropriate inquiry, the trial court properly denied defendant's renewed request for new counsel (see People v. Linares, 2 N.Y.3d 507, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).   The court properly concluded that defendant's complaint of inadequate communication with his attorney was unfounded, and that counsel's sound advice to defendant to plead guilty was not a basis for substitution (see People v. Estwick, 266 A.D.2d 123, 698 N.Y.S.2d 668 [1999], lv. denied 94 N.Y.2d 918, 708 N.Y.S.2d 358, 729 N.E.2d 1157 [2000] ).   At this colloquy, defendant was not deprived of his right to conflict-free representation, because counsel's brief and innocuous remarks did not provide damaging factual information or take a position adverse to that of his client (see People v. Walton, 14 A.D.3d 419, 420, 788 N.Y.S.2d 107 [2005] ).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims.