THE PEOPLE OF THE STATE OF NEW YORK v. WESLEY COOPER (2026)

4435–16

.2019–833

2019–2066

.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Karen Brill of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Alex King of counsel), for respondent.

Judgments, Supreme Court, New York County (Michael Obus, J., at diversion proceedings;  Cassandra M. Mullen, J., at trial and sentencing), rendered November 19, 2018, convicting defendant of criminal possession of a controlled substance in the third and fourth degrees under indictment No.

, and criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree under indictment No.

, and sentencing him, as a second felony drug offender, to an aggregate term of 7 years, reversed, on the law, and the matters remanded for a new trial.

The court improperly denied defendant's request for new counsel “without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary” (People v. McCummings, 124 AD3d 502, 502 [1st Dept 2015] ).  Accordingly, defendant is entitled to a new trial.

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel (see People v. Fredericks, 43 NY3d 551, 557 [2025] [internal quotation marks omitted] ).  The defendant's request “may not be used merely to delay the orderly administration of justice” (People v. Sides, 75 N.Y.2d 822, 824 [1990] ).  It must be supported by “specific factual allegations of serious complaints about counsel” (see People v. Porto, 16 NY3d 93, 100 [2010] [internal quotation marks omitted] ).  Once the court determines that defendant's request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel (see Sides, 75 N.Y.2d at 824–825).

However, before the court can determine whether the defendant's allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations (see People v. Dinkins, – AD3d – 2026 N.Y. Slip Op 01742, *5 [1st Dept 2026] [“(T)he minimal inquiry requirement presumes a fair opportunity to be heard.  The law, in other words, does not permit the court to satisfy its obligations in this area by refusing the defendant an opportunity to record a potentially serious request”] ).  Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” (People v. Hernandez–Molina, 219 AD3d 1232, 1233 [1st Dept 2023] [internal quotation marks omitted];  see People v. Resheroop, 209 AD3d 444, 444 [1st Dept 2022];  People v. Branham, 59 AD3d 244, 245 [1st Dept 2009] ).

In McCummings, the defendant requested new counsel on the fourth day of trial based on “my attorney and advice” and that the attorney was “not doing his proper work” (124 AD3d at 502).  The trial court in that case refused to review the defendant's written application and summarily ruled, “I will not reassign counsel.  The motion is denied” (id.)  This Court found that “[w]hether the defendant's application was a dilatory tactic [was] unknowable from this record because the court failed to ascertain the basis of defendant's motion before denying it” (id. at 503).  It continued, “[H]ad it briefly engaged defendant and reviewed his papers, [it] would then have had a basis on which to decide whether a minimal inquiry should be undertaken as to the nature of the disagreement or its potential for resolution” (id.).  The trial court's failure to conduct any inquiry and to permit defendant to explain why such an inquiry might be necessary resulted in reversal and remand for a new trial.

Similarly in Dinkins, this Court reversed the defendant's conviction and remanded for further proceedings based on the Supreme Court's summary denial of the defendant's request for new counsel (2026 N.Y. Slip Op 01742, *2).  There, after the defendant asked to speak with the court, the following colloquy occurred:

THE COURT:  Talk to your lawyer.

DEFENDANT:  I cannot talk to him.  That's why I'm trying

to talk to you.  I need a new attorney.  Several messages, not

answering the phone, several e-mails.

THE COURT:  Any lawyer I give you will be busy or busier.

I know your attorney is very good.  Does very good work. He

ordered hearings based upon his written work.  You have to

stick with this attorney.  He's very good.  I'm telling you.

DEFENDANT:  I cannot do it with this attorney.  I'm sorry.

THE COURT:  Then you hire one.  See you on the next date (id. at *3).

Under those circumstances, which arguably involved a more in-depth colloquy than occurred here, we held that the court “had no basis to deny the application without hearing any explanation of defendant's reasons for requesting new counsel, regardless of whether those reasons would have been too general and conclusory to warrant a minimal inquiry if he had been permitted to give them” (id. at *8 [internal quotation marks and citation omitted] ).  The same reasoning applies here.

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I'm not getting a fair trial.  I'm not even prepared for a trial.  My lawyer, my lawyer is ineffectively counseling me ․ [a]nd also representing me.”  The court responded that “You made your record” and “I'm not relieving your counsel.  Don't interrupt me.”  Defendant tried to continue his request and stated, “I asked for a lab report.  He gave me a field test.”  The court interjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it's going to be a problem, okay.  So just get yourself under control.”  The court's admonition effectively foreclosed any further discussion.

The court's refusal to allow defendant to articulate his concerns was error and entitles defendant to a new trial.  The dissent is correct that a court need not inquire about every complaint that is made by a defendant about their counsel;  however, the court is required to at a minimum know the nature of the complaint before summarily dismissing it.

Here, defendant's statements clearly apprised the court that he was frustrated with his attorney and was seeking substitution, given the court's abrupt ruling that it would not relieve defense counsel before defendant had an opportunity to even mention his additional complaints (see Branham, 59 AD3d at 245).  The court declined to listen and cut short defendant's explanation.  It repeatedly admonished defendant for interrupting, and then expressly warned defendant that if he continued with this behavior in front of the jury “it's going to be a problem” (see McCummings, 124 AD3d at 502–503 [“This is not a situation where a defendant rested on unelaborated claims;  the court expressly declined to listen to defendant or read his submissions”];  Sides, 75 N.Y.2d at 825 [the trial court “erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution”] ).  It would thus be improper to find, as the dissent believes, that defendant's statements were insufficiently specific to trigger the court's minimal inquiry duty.

While the timing of the request could be deemed suspect, simply having a jury waiting is not a basis to deny defendant his right to be heard.  As we held in Branham, “[e]ven though the request for new counsel may well have been a delaying tactic, and even though the ‘conflict’ may well have been defendant's unjustified dissatisfaction with his attorney, the court had no basis to deny the application without hearing any explanation” (59 AD3d at 245;  see Dinkins, 2026 N.Y. Slip Op 01742, *1 [“(e)ven a defendant who appears to be using delaying tactics must at least be given an opportunity to state the basis for his application”] [internal quotation marks omitted];  Hernandez–Molina, 219 AD3d at 1233).

Since we are reversing and remanding for a new trial, we do not reach any of defendant's remaining arguments on appeal, except we find that the court did not abuse its discretion by declining to adjourn the proceedings and order a judicial diversion screening months after arraignment and shortly before the scheduled joint trial with an incarcerated codefendant (see CPL 216.05;  People v. Ratliff, 217 AD3d 585, 585 [1st Dept 2023], lv denied 40 NY3d 952 [2023];  People v. Velez, 201 AD3d 554, 555 [1st Dept 2022], lv denied 39 NY3d 1076 [2023] ).

All concur except Webber, J.P. who dissents in a separate memorandum

as follows:

Webber, J.P. (dissenting),

I would affirm the judgments of convictions.

Defendant was charged by indictment No.

with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, in connection with his alleged possession of crack cocaine on September 8, 2016.

By indictment No.

, he and codefendant Antonio Battle were charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree (two counts), in connection with their alleged sale of crack cocaine to an undercover police officer on October 15, 2016.  Defendant was charged with criminal possession of a controlled substance in the third degree, in connection with the alleged recovery of additional crack cocaine during a search incident to that arrest.

Following trial, defendant was convicted of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree for the September 8, 2016 incident, and criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree for the October 15, 2016 date, and sentencing him, as a second felony drug offender, to an aggregate prison term of 7 years.

On appeal, defendant argues, among other things, that the court abused its discretion by failing:  1) to order a substance abuse evaluation to determine his eligibility for judicial diversion;  and 2) to allow defendant to explain the basis for his dissatisfaction with defense counsel, and to conduct the required minimal inquiry into defendant's complaints.

I agree that the court did not abuse its discretion by declining to adjourn the proceedings and order a judicial diversion screening months after arraignment and shortly before the scheduled joint trial with an incarcerated codefendant.  The record reflects that the court promptly provided defendant the opportunity to plead guilty in exchange for the promise to refer him for diversion screening which defendant declined.  It was not improper for the court to consider the timing of defendant's application and its potential effects on his codefendant, who remained incarcerated pending their joint trial.

However, I disagree that defendant is entitled to a new trial.  Contrary to the majority's finding, the court did not deny a specific request by defendant for new counsel without making any inquiry, nor did the court deny defendant the opportunity to explain the basis for his request.  In my opinion, defendant's midtrial statements expressing dissatisfaction with his attorney's performance did not constitute a specific request for new counsel and did not require minimal inquiry by the court.

Following jury selection and while the jury was being brought to the courtroom to be sworn, defendant stated he wanted to speak directly to the court.  The court directed defendant to speak to defense counsel, who relayed to the court that defendant “has expressed concerns that he's not being represented properly.”  Defendant stated, “I feel I'm not getting a fair trial,” and added, “I have a right to speak up.  I feel I'm not getting a fair trial.  I'm not even prepared for trial.  My lawyer, my lawyer is ineffectively counselling me.”  The court responded, “You made your record.  I'm not relieving your counsel.  Don't interrupt me.”  Despite this, defendant continued, “I asked for a lab report.  He gave me a field test.”  The court reiterated, “I said not to interrupt me.”

“[D]efendant's vague expression of dissatisfaction with his attorney ․ which was not accompanied by an explicit request for new counsel,” was not “the type of serious complaint that would trigger the court's obligation to make a minimal inquiry” (People v. Osman, 151 AD3d 494, 495 [1st Dept 2017], lv denied 30 NY3d 982 [2017];  see also People v. Nelson, 63 AD3d 563, 563 [1st Dept 2009], lv denied 13 NY3d 747 [2009] [the defendant “express[ed] dissatisfaction with his counsel” and “grumbled” but “did not explicitly ask for a new lawyer”] ).

In People v. Fredericks (43 NY3d 551, 557 [2025] ), the Court of Appeals made clear that a court need not inquire of every complaint that a defendant makes about their attorney.  It made clear that “the trial court's obligation to consider a motion to substitute counsel arises only where the defendant makes a seemingly serious request” by “com[ing] forth with ‘specific factual allegations of serious complaints about counsel’ “ (id. [internal quotation marks and citations omitted] ).

Parenthetically, earlier in the case, the defendant had specifically requested substitution of counsel pointing to the inability to work with the then-assigned counsel.  The court granted the defendant's request and appointed new counsel.  Unlike those earlier statements, here defendant's statements were general, conclusory and cannot be seen as a request for new counsel or signaling to the court that there was now a conflict between he and his second court-appointed counsel.  Defendant's sole specific complaint that counsel provided him with a field test rather than a lab report did not amount to “a conflict of interest or other irreconcilable conflict with counsel” (People v. Sides, 75 N.Y.2d 822, 824 [2006];  see also Fredericks at 557).

The majority fails to articulate how defendant's statements constituted a specific request for new counsel.  The majority's reliance on People v. McCummings, (124 AD3d 502, 502 [1st Dept 2015] ), which pre-dates the Court of Appeals decision in Fredericks, is misplaced.  There, this Court held that the defendant was entitled to a new trial because the trial court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting the defendant to explain, either orally or in writing.  In McCummings, there was a specific, explicit request for new counsel which, according to this Court, required further inquiry by the court.  Here, however, defendant's statements were general, conclusory and did not constitute a serious request for new counsel.  I disagree with the majority's conclusion that defendant's statements clearly apprised the court that he was frustrated with his attorney and was seeking substitution.

As noted by the majority, in People v. Dinkins (— AD3d —, 2026 N.Y. Slip Op 01742, *2 [1st Dept 2026] ), this Court reversed the defendant's conviction and remanded for further proceedings based on the Supreme Court's summary denial of the defendant's request for new counsel.  The Court stated that the defendant's request for counsel required minimal inquiry.  There, the defendant specifically stated that he “need[ed] a new attorney” and that he “cannot do it with this attorney” (id. at *3).  Unlike Dinkins, here, there was no such request.  Rather, there was a statement of dissatisfaction by defendant with the form of the discovery he received.

Moreover, the timing of defendant's statements, made as the selected jury was literally standing outside the courtroom waiting to enter to begin the trial, was more than simply “suspect” as argued by the majority.  Rather, the timing suggests this was “a delaying tactic rather than a legitimate complaint” (People v. Simmons, 145 AD3d 501, 502 [1st Dept 2016], lv denied 28 NY3d 1188 [2017];  see also People v. Zuniga, 149 AD3d 660, 660 [1st Dept 2017], lv denied 29 NY3d 1136 [2017] ).  Defendant made no request for new counsel either before or during jury selection.  Rather, he waited until after the full panel and alternate jurors were selected and ready to be sworn thus strategizing that instead of inconveniencing the selected jurors who were standing outside of the courtroom, the court would adjourn the start of the trial.

Contrary to the majority's argument, the court in Dinkins did acknowledge that “a reviewing court should consider whether ‘the timing and circumstances' of a defendant's request for a new attorney ‘suggest that it was a delaying tactic’ ” (2026 N.Y. Slip Op 01742, *10, citing Zuniga, 149 AD3d at 660).  The Court noted, however, that there the request was made while the case was in its early stages.  Indeed, in all of the cases cited by the majority, any request for new counsel was made prior to jury selection.  In Dinkins, the request was made almost two months prior to the date set for trial (Dinkins, 2026 N.Y. Slip Op 01742, *2–3).  In People v. Hernandez–Molina (219 AD3d 1232, 1233 [1st Dept 2023] ), the request was made shortly before jury selection.  And, in People v. Branham (59 AD3d 244, 245 [1st Dept 2009] ), the request was made prior to the commencement of the pretrial suppression hearings.  In none of the cases cited by the majority was there any statement made by a defendant regarding counsel while the selected jurors were awaiting entry into the courtroom.

In my opinion, even assuming defendant's statements could be construed as an explicit demand for yet another attorney, and assuming further that minimal inquiry was required, the court engaged in that further inquiry by allowing defendant to continue to voice his concerns, the gravamen being that he was ill-prepared for trial and had been given a field test as opposed to a lab report.

At bottom, the resolution of a defendant's complaints regarding counsel “remains within the discretion and responsibility of the trial judge,” (Fredericks, 43 NY3d at 557 [internal quotation marks and citation omitted] ), who is “in the best position to determine the genuineness of [a] defendant's objection,” (People v. Smith, 192 A.D.2d 310, 312 [1st Dept 1993], affd 82 N.Y.2d 731 [1993] ).  I see no basis to disturb Supreme Court's determination and would therefore affirm.