People v. GoodwinPeople v. Goodwin
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (
Although defendant‘s contention that the court erred in denying his preplea request for an adjournment to enable him to retain new counsel “survives his guilty plea inasmuch as the right to counsel of one‘s choosing is so deeply intertwined with the integrity of the process in [the court] that defendant‘s guilty plea is no bar to appellate review’ ” (People v Booker, 133 AD3d 1326, 1327 [4th Dept 2015], lv denied 27 NY3d 1149 [2016], quoting People v Griffin, 20 NY3d 626, 630 [2013]; see generally People v Hansen, 95 NY2d 227, 230-231 [2000]), we conclude that it lacks merit. It is well settled that “the constitutional right to [a defense] by counsel of one‘s own choosing does not bestow upon a criminal defendant the absolute right to demand that his trial be delayed while he selects another attorney to represent him at trial . . . Whether a continuance should be granted is largely within the discretion of the [t]rial [court]” (People v Arroyave, 49 NY2d 264, 271 [1980]; see People v Robinson, 132 AD3d 1407, 1409 [4th Dept 2015], lv denied 27 NY3d 1005 [2016]). Under the circumstances of this case, we conclude that defendant was not denied the right “to retain counsel of his own choosing and the . . . court did not abuse its discretion in denying defendant‘s request to delay the [impending suppression hearing and scheduled] trial” (People v Michalek, 195 AD2d 1007, 1008 [4th Dept 1993], lv denied 82 NY2d 807 [1993]; see Booker, 133 AD3d at 1327; Robinson, 132 AD3d at 1409).
To the extent that defendant‘s further contention that his guilty plea was not knowing, voluntary, and intelligent is preserved for our review by his motion to withdraw his plea (see People v Johnson, 23 NY3d 973, 975 [2014]; cf. People v Gibson, 140 AD3d 1786, 1787 [4th Dept 2016], lv denied 28 NY3d 1072 [2016]), we conclude that it is without merit. Defendant‘s assertion that he was not afforded sufficient time to discuss the plea with defense counsel is belied by the record, which establishes that the court granted defendant‘s request for a recess for that purpose and that defendant thereafter confirmed that he had discussed the matter with defense counsel and never indicated that he needed more time (see People v Spates, 142 AD3d 1389, 1389 [4th Dept 2016], lv denied 28 NY3d 1127 [2016]). In addition, “the fact that
Defendant further contends that he was denied effective assistance of counsel, which also established that his plea was involuntary, because he did not have sufficient communication with defense counsel prior to forgoing the suppression hearing in favor of pleading guilty, defense counsel did not adequately advise him about the nature and consequences of the plea, and defense counsel was unprepared for the suppression hearing. Defendant‘s contention survives his guilty plea “only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[‘s] allegedly poor performance’ ” (People v Rausch, 126 AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149 [2016] [internal quotation marks omitted]). Here, however, defendant‘s contention ” involve[s] matters outside the record on appeal and therefore must be raised by way of a motion pursuant to
Entered: March 16, 2018
Mark W. Bennett
Clerk of the Court