PEOPLE v. CAMPBELL

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

The PEOPLE, etc., respondent, v. Phillip CAMPBELL, appellant.

Decided: September 23, 2008

ROBERT A. LIFSON, J.P., ANITA R. FLORIO, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ. George R. Goltzer and Pamela D. Hayes, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered June 6, 2006, convicting him of rape in the first degree, rape in the third degree, and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant was not denied his right to be represented by counsel of his own choosing by the trial court's refusal to adjourn the trial.  “[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;  see People v. Gjelaj, 46 A.D.3d 911, 912, 848 N.Y.S.2d 350;  People v. Goodwine, 46 A.D.3d 702, 848 N.Y.S.2d 243;  People v. Hansen, 37 A.D.3d 318, 830 N.Y.S.2d 536).   Here, the defendant had ample opportunity to retain counsel of his own choosing before that time, and failed to demonstrate that the requested adjournment was necessitated by forces beyond his control and was not a dilatory tactic (see People v. Grigg, 299 A.D.2d 367, 749 N.Y.S.2d 159;   People v. Brown, 277 A.D.2d 246, 716 N.Y.S.2d 322).

Contrary to the defendant's contention, he was not denied the effective assistance of counsel (see People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant failed to preserve for appellate review his contention that the trial court considered improper factors in imposing sentence (see People v. Harrison, 82 N.Y.2d 693, 694, 601 N.Y.S.2d 573, 619 N.E.2d 651;  People v. Gonzalez, 43 A.D.3d 827, 828, 843 N.Y.S.2d 632;  People v. Santos-Mispas, 38 A.D.3d 923, 831 N.Y.S.2d 344;  People v. Leon, 19 A.D.3d 509, 510, 797 N.Y.S.2d 525).   In any event, this contention is without merit, and the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.

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