175 A.D.2d 346 | N.Y. App. Div. | 1991
Appeal from a judgment of the County Court of Rensselaer County (Harris, J.), rendered August 15, 1990, convicting defendant upon his plea of guilty of three counts of the crime of criminal sale of a controlled substance in the fifth degree.
Defendant, a predicate felon, was originally indicted by a Grand Jury on three counts of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree. In the course of plea negotiations in the matter, defendant’s attorney apparently urged defendant to plead guilty to reduced charges and accept a proffered plea bargain of concurrent 2- to 4-year prison terms. Defendant refused and the matter was set down for trial. On the eve of trial, however, defendant changed his mind and decided to accept a new plea bargain which involved pleading to reduced charges of three counts of criminal sale of
In the meantime, however, defendant took steps to hire a new attorney, F. Stanton Ackerman. Ackerman proceeded to bring on a motion to allow defendant to withdraw his previously entered plea of guilty. An order to show cause was signed by a different County Judge and the People opposed the motion. On May 25, 1990, the date of the previously scheduled sentencing proceeding, defendant appeared before Judge Harris with Ackerman as his counsel. Citing the longstanding difficulties associated with Ackerman appearing before him because of a past association and dispute between the two, Judge Harris disqualified Ackerman from representing defendant. Judge Harris explained that because he had been involved in defendant’s case to a great extent and Ackerman was a relative newcomer, the interest of justice required disqualification of the attorney rather than the recusal of the Judge. County Court adjourned the motion, told defendant to find new counsel and directed Ackerman to return any fee already collected. An order to that effect was later entered and defendant filed a notice of appeal which was later withdrawn.
Rather than obtain new counsel, defendant ultimately attempted to bring a CPLR article 78 proceeding in the nature of prohibition in this court in an attempt to overturn the order of disqualification with respect to Ackerman. The petition was eventually dismissed, however, and defendant obtained a third attorney to represent him at a sentencing proceeding before Judge Harris. At that time defendant was sentenced as a predicate felon to concurrent prison terms of 3 to 6 years. This appeal followed.
Initially, defendant contends that the disqualification of Ackerman as his attorney impermissibly impinged on his right to counsel of his choice. At the outset, we must briefly state our disagreement with the People’s argument that defendant somehow waived his right to advance this contention by virtue of the fact that his prohibition proceeding was dismissed and his appeal from the disqualification order was voluntarily withdrawn. Significantly, prohibition proceedings such as the one brought by defendant are generally dismissed
Turning to the merits, we conclude that no reversible error was committed by the disqualification of Ackerman. The difficulties pertaining to Ackerman’s appearance before Judge Harris are well documented in the record and are beyond dispute. As thoroughly explained to defendant prior to the disqualification, recusal of the Judge at that time was not an appropriate remedy in that instance in light of Judge Harris’ intimate involvement in the matter almost from its inception and Ackerman’s status as a newcomer to the proceedings. According to defendant, Ackerman’s name was simply selected from the yellow pages by chance and no improper motives existed for the choice. However, the question of motivation is not the most important issue here. What is important here as a policy matter is the avoidance of any appearance of improper "Judge-shopping”. This principle is consistent with Opinions Nos. 511 and 574 of the State Bar Association’s Committee on Professional Ethics and also the broad dictates of the Code of Professional Responsibility and the Code of Judicial Conduct. While the right to counsel is absolute, the right to specific counsel of choice is not (see, Matter of Abrams, 62 NY2d 183, 196). This right is flexible and will yield in the face of an "overriding competing public interest” (supra, at 196). Here, the interests of judicial economy, preservation of the integrity of our court system and defendant’s own interest in being sentenced before a Judge familiar with his case all point in favor of Ackerman’s disqualification. Since we find that the most appropriate response to a difficult situation was taken under the circumstances, we decline to disturb the disqualification order.
Defendant’s remaining contentions are similarly lacking in merit. Although defendant goes to great lengths in maintaining that his original attorney in the pre-plea proceeding was incompetent, there is little proof in the record to support
Mahoney, P. J., Weiss, Mikoll and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Rensselaer County for further proceedings pursuant to CPL 460.50 (5).