PEOPLE v. SHABAZZ (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (David S. Zuckerman, J.), rendered October 3, 2017, convicting him of assault in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was involuntary because the County Court refused to grant him an adjournment so that he could retain private counsel to substitute for his assigned counsel is unpreserved for appellate review, since the defendant did not move to withdraw his plea prior to sentencing or otherwise raise the issue in the County Court (see People v. Bridgers, 159 A.D.3d 715, 69 N.Y.S.3d 497;  People v. Williams, 156 A.D.3d 920, 921, 65 N.Y.S.3d 771).  In any event, the contention is without merit.  “[A]bsent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant's request to substitute counsel made on the eve of or during trial if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time” (People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393).

Here, the defendant had ample opportunity after his release on bail in January 2017, and even after a trial date of May 8, 2017, was set in March 2017, to retain his own counsel.  Further, there were no “exigent or compelling circumstances” warranting a late adjournment (People v. Arroyave, 49 N.Y.2d at 271, 425 N.Y.S.2d 282, 401 N.E.2d 393).  In that regard, although the defendant made certain generalized complaints about his assigned counsel, these complaints “did not suggest the serious possibility of a[n] ․ impediment to the defendant's representation by assigned counsel” (People v. Allison, 69 A.D.3d 740, 740, 892 N.Y.S.2d 516;  see People v. Wesley, 134 A.D.3d 964, 965, 21 N.Y.S.3d 345).  Under these circumstances, it was reasonable and not coercive for the court to deny the defendant's application for an adjournment to retain counsel (cf. People v. Wesley, 134 A.D.3d at 964, 21 N.Y.S.3d 345;  People v. Allison, 69 A.D.3d at 741, 892 N.Y.S.2d 516;  People v. Campbell, 54 A.D.3d 959, 960, 863 N.Y.S.2d 827).

The defendant further asserts that his assigned counsel was ineffective in that he failed to communicate with the defendant, provide requested evidence, or investigate the case, and that his plea of guilty was thereby rendered involuntary.  Since the defendant's ineffective assistance of counsel contention implicates the voluntariness of his plea, it is not waived by any valid appeal waiver (see generally People v. Kovalsky, 166 A.D.3d 900, 901, 85 N.Y.S.3d 889;  People v. Smith, 162 A.D.3d 799, 74 N.Y.S.3d 883).  However, the defendant's ineffective assistance of counsel contention cannot be reviewed on direct appeal because it is based on matters outside the record on appeal (see People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539;  People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).  The appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10 (see People v. Stevens, 162 A.D.3d at 1078, 75 N.Y.S.3d 539;  People v. Rohlehr, 87 A.D.3d at 604, 927 N.Y.S.2d 919).

LEVENTHAL, J.P., COHEN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.