PEOPLE v. SIMMS (2005)

 Defendant appeals from a judgment convicting him after a jury trial of four counts of robbery in the second degree (Penal Law § 160.10[1], [2][b] ) and sentencing him as a persistent felony offender.   We reject the contention of defendant that County Court erred in denying his motion to dismiss the indictment on the ground that his trial was not commenced within the time period set forth in article IV(c) of the Interstate Agreement on Detainers (CPL 580.20).   Certain delays were attributable to the disposition of motions made by defendant, including time for the People's responses thereto, the hearing conducted with respect to such motions, and the decisions rendered by the court, and thus those delays are excluded from the period of time chargeable to the People (see People v. Torres, 60 N.Y.2d 119, 127-128, 468 N.Y.S.2d 606, 456 N.E.2d 497;  People v. Williams, 278 A.D.2d 806, 720 N.Y.S.2d 653, lv. denied 96 N.Y.2d 808, 726 N.Y.S.2d 386, 750 N.E.2d 88;  People v. Cook, 63 A.D.2d 841, 406 N.Y.S.2d 643).   The remaining delays were adjournments requested by defendant after he was assigned new counsel.   Contrary to defendant's contentions, there is no requirement that the court make “a formal finding” on the record of good cause for a continuance (Cook, 63 A.D.2d at 842, 406 N.Y.S.2d 643), and the record establishes that the continuances were reasonable and necessary.

 Defendant further contends that he was effectively deprived of his right to counsel during the suppression hearing because he had a conflict with defense counsel.   Defendant failed to meet his burden of establishing good cause for substitution of counsel (see generally People v. Linares, 2 N.Y.3d 507, 510-511, 780 N.Y.S.2d 529, 813 N.E.2d 609).   A defendant is guaranteed meaningful representation but is not guaranteed a harmonious relationship with defense counsel, particularly where, as here, the defendant is contumacious (see id. at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609).   The tension that arose between defendant and defense counsel because of defendant's disagreement with defense counsel's strategy does not constitute the requisite good cause for substitution (see People v. Walton, 14 A.D.3d 419, 419-420, 788 N.Y.S.2d 107, lv. denied 5 N.Y.3d 796, 801 N.Y.S.2d 816, 835 N.E.2d 676;  People v. Saladeen, 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143;  People v. Holmes, 284 A.D.2d 984, 728 N.Y.S.2d 611, lv. denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662).   Indeed, the record establishes that the only conflict of interest was that created by defendant because of his unjustified hostility toward his assigned counsel (see People v. Felder, 17 A.D.3d 126, 127, 793 N.Y.S.2d 20, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669).

Defendant failed to preserve for our review his contention that the persistent felony offender statute is unconstitutional (see People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 749 N.E.2d 727;  People v. Watkins, 17 A.D.3d 1083, 1084, 793 N.Y.S.2d 657, lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275) and, in any event, that contention is without merit (see People v. Rivera, 5 N.Y.3d 61, 63, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Nelson, 16 A.D.3d 1172, 791 N.Y.S.2d 236, lv. denied 5 N.Y.3d 766, 801 N.Y.S.2d 260, 834 N.E.2d 1270).   The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: