PEOPLE v. GRAY III

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. John GRAY, III, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, MARTOCHE, AND HAYES, JJ. David M. Parks, Ithaca, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Thomas D. Reh of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[1] ).   Contrary to the contention of defendant, he was not deprived of due process of law when County Court substituted assigned counsel against defendant's wishes.   The right of a defendant to counsel of his or her choice is not absolute (see Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140, reh. denied 487 U.S. 1243, 108 S.Ct. 2918, 101 L.Ed.2d 949).   That right will yield where, as here, there is an “overriding competing public interest” (Matter of Abrams, 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1;  see People v. Mackey, 175 A.D.2d 346, 348, 572 N.Y.S.2d 424, lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421).   Here, defendant's first assigned counsel was being prosecuted for tampering with a witness in another case in the same county, and the court thus was faced with “the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review” (People v. Tineo, 64 N.Y.2d 531, 536, 490 N.Y.S.2d 159, 479 N.E.2d 795).   We conclude that the court properly exercised its discretion in substituting assigned counsel under the circumstances of this case (see generally People v. Segrue, 274 A.D.2d 671, 672-673, 710 N.Y.S.2d 466, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154;  People v. Gordon, 272 A.D.2d 133, 709 N.Y.S.2d 503, lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786;  Mackey, 175 A.D.2d at 348, 572 N.Y.S.2d 424).   Defendant failed to preserve for our review his contention that the court failed to provide him with an explanation for the substitution (see CPL 470.05[2] ).   The record establishes that, although the explanation for the substitution was not placed on the record in open court at the time of the substitution, the court stated that defendant would be provided with an explanation.   Defendant did not thereafter object to the substitution on the ground that no explanation was provided, nor is there otherwise any indication in the record that no explanation was provided.

Defendant failed to preserve for our review his further contention that his plea of guilty was coerced (see People v. Santalucia, 19 A.D.3d 806, 797 N.Y.S.2d 590;  People v. Thompson, 4 A.D.3d 785, 771 N.Y.S.2d 436, lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479), and the narrow exception to the preservation requirement is not applicable here (see People v. Williams, 6 A.D.3d 1149, 775 N.Y.S.2d 661, lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211;  see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: