People v. Banks

Oct 5, 1999
Versions:265 A.D.2d 163
696 N.Y.S.2d 41
1999 N.Y. App. Div. LEXIS 9691

—Judgment, Supreme Court, New York County (Felice Shea, J.), rendered June 5, 1997, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.

The court properly denied defendant’s application for substitution of counsel since defendant failed to show good cause for such substitution (see, People v Sides, 75 NY2d 822). The strategic disagreement between defendant and counsel concerning counsel’s handling of the competency issue was not a “conflict” requiring substitution. In any event, were we to find that substitution should have been granted, we would find the error to be harmless because counsel was ultimately replaced, well in advance of trial, by a different Legal Aid Society attorney with whom defendant expressed no dissatisfaction.

Contrary to defendant’s appellate contention, the record establishes that despite mistaken use of terminology, the participants understood that the purpose of the proceeding conducted prior to sentencing was to determine whether defendant should be sentenced as a persistent felony offender pursuant to Penal Law § 70.10 and CPL 400.20. Defendant’s argu*164ment that the procedural requirements were not followed is unpreserved (People v Proctor, 79 NY2d 992, 994), and we decline to review it in the interest of justice. Were we to review this claim, we would find substantial compliance with those requirements (People v McGourty, 188 AD2d 679, lv denied 81 NY2d 843). Concur — Rosenberger, J. P., Tom, Mazzarelli, Saxe and Buckley, JJ.