PEOPLE v. WALTON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Andre WALTON, Defendant-Appellant.

Decided: January 20, 2005

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, SWEENY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant. Andre Walton, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Walter J. Storey of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J. on motion for reassignment of counsel;  Edward J. McLaughlin, J. at jury trial and sentence), rendered January 10, 2003, convicting defendant of forgery in the second degree (two counts), grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 3 1/212 to 7 years, unanimously affirmed.

 After sufficient inquiry, the court properly denied defendant's request for new assigned counsel, since defendant failed to establish good cause for a substitution (see People v. Sides, 75 N.Y.2d 822, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).   The record fails to support defendant's current assertion that the court's inquiry was inadequate;  defendant received ample opportunity to be heard both orally and in writing, and the court engaged him in an extended colloquy.   Defendant's unjustified hostility toward his counsel and his disagreements with counsel's tactics did not require substitution (see People v. Sawyer, 57 N.Y.2d 12, 19, 453 N.Y.S.2d 418, 438 N.E.2d 1133 [1982];  People v. Medina, 44 N.Y.2d 199, 209, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ).   Defendant's challenge to the effectiveness of his trial representation involves matters outside the record and thus would require a CPL 440.10 motion (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   To the extent the present record permits review, it establishes that counsel went on to provide effective assistance at trial (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 Defendant was not deprived of his right to conflict-free representation.   When defendant filed meritless complaints to the Departmental Disciplinary Committee and in federal court against assigned counsel, any conflict was of defendant's own making, and he was not entitled to circumvent the good cause requirement by creating an artificial conflict (see People v. Linares, 2 N.Y.3d 507, 512, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004];  People v. Vasquez, 287 A.D.2d 334, 731 N.Y.S.2d 167 [2001], lv. denied 97 N.Y.2d 709, 739 N.Y.S.2d 111, 765 N.E.2d 314 [2002];  People v. Davis, 226 A.D.2d 125, 640 N.Y.S.2d 53 [1996], lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246 [1996];  see also Mathis v. Hood, 937 F.2d 790, 796 [2d Cir.1991] ).   Counsel's brief defense of his own performance, made in response to an inquiry from the court, did not create a prejudicial conflict.   Counsel's innocuous and generalized remark fell far short of providing damaging factual information (compare People v. Rozzell, 20 N.Y.2d 712, 282 N.Y.S.2d 775, 229 N.E.2d 452 [1967] ), and the court's familiarity with the proceedings permitted it to make an informed determination without having to rely on defense counsel's statements (see People v. Vasquez, 287 A.D.2d 334, 731 N.Y.S.2d 167, supra ).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.