PEOPLE v. HOWDEN (2023)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]), defendant contends that he was denied effective assistance of counsel based on several alleged errors by defense counsel. Defendant initially claims that defense counsel was ineffective in connection with a proposed plea agreement that County Court ultimately refused to accept because defendant's factual recitation during the plea colloquy negated an element of the crime in question. That claim involves strategic discussions between defendant and defense counsel outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10 (see People v. Manning, 151 A.D.3d 1936, 1938, 59 N.Y.S.3d 229 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 135, 89 N.E.3d 525 [2017]; People v. Mangiarella, 128 A.D.3d 1418, 1418, 7 N.Y.S.3d 812 [4th Dept. 2015]). Likewise, defendant's claim that defense counsel was ineffective for failing to call an expert at trial on the effects of a prescription medication that defendant had taken also involves factual matters outside the record and must be raised by way of a motion pursuant to CPL 440.10 (see People v. Tetro, 175 A.D.3d 1784, 1786, 109 N.Y.S.3d 776 [4th Dept. 2019]; People v. Langevin, 164 A.D.3d 1597, 1598, 84 N.Y.S.3d 284 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 584, 121 N.E.3d 211 [2019]). To the extent that defendant's contention is reviewable on this appeal, we conclude that, although defense counsel's performance at trial was not flawless, the evidence, the law, and the circumstances of this case, viewed as a whole and as of the time of the representation, establish that defendant was afforded meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).

Defendant further contends that he was denied his right to counsel of his choosing when the court denied his request for an adjournment of trial to retain new counsel. We reject that contention. Although the right to counsel under the Federal and State Constitutions “embraces the right of a criminal defendant to be represented by counsel of [their] own choosing” (People v. Arroyave, 49 N.Y.2d 264, 270, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980]), that right “is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” (People v. O'Daniel, 24 N.Y.3d 134, 138, 996 N.Y.S.2d 580, 21 N.E.3d 209 [2014] [internal quotation marks omitted]). Here, defendant made his request on the eve of trial, he had not retained other counsel despite having ample opportunity to do so, and he failed to demonstrate that substitution of counsel “was necessitated by forces beyond his control and was not a dilatory tactic” (People v. Hunter, 171 A.D.3d 1534, 1535, 99 N.Y.S.3d 551 [4th Dept. 2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 662, 130 N.E.3d 1272 [2019] [internal quotation marks omitted]).