OPINION OF THE COURT
After a trial by jury, Jose Medina was convicted of rape in the first degree (Penal Law, § 130.35) and burglary in the first degree (Penal Law, § 140.30). Dismissing a lesser included count, the Appellate Division affirmed. On this appeal to us, the appellant now asserts that (1) he was denied effective assistance of counsel because the Trial Judge refused to replace his court-appointed lawyer and thus improperly compelled him to defend himself and (2) the evidence was insufficient to meet the corroboration standards then required to support a conviction for rape. On the analysis which follows, we conclude that both contentions are lacking in merit.
We begin by setting forth the operative facts bearing on the commission of the crime itself. The prosecutrix, a young woman of 19, testified without contradiction that on May 23, 1973 the appellant, after putting her in a terrorized state by breaking into her locked Manhattan apartment at 3:00 a.m., compelled her to submit to acts of sexual intercourse and sodomy. After being disturbed by a clawing and rustling sound, she discovered him crouched on the floor with a knife in his hand. Presumably, Medina, a complete stranger, had gained entrance through an iron window gate which, previously in good condition, had been pried apart. The knife he held had been taken from her kitchen.
These additional items of proof bear particularly on the issue of corroboration: While the victim, having been forced to remove all her clothes, was still unclad the appellant opened the apartment door to admit an accomplice who, Medina announced, would also take his turn at raping her. At that juncture, the police, who arrived in response to a radio report that intruders had been seen entering the building, apprehended both men before either could make good his escape;
Before describing the subsequent course of events relevant to the right to counsel issue, we pause to examine appellant’s contention that there was a failure to prove the necessary corroboration. In May, 1973, the Penal Law required independent evidence which "tended” to establish both that there had been an attempt to engage the victim in sexual intercourse and that force was used in that endeavor (former Penal Law, § 130.15, L 1972, ch 373). This evidence could be either direct or circumstantial (People v Bercume,
The statutory standards here were well met. That the appellant’s underwear was found in the victim’s apartment rather than under the appellant’s outer clothes was circumstantial evidence of a most telling nature as to his participation in the sexual encounter which the prosecuting witness described. The distressed state in which the police found the victim at the time of her rescue, the lateness of the hour, the role of the knife, the twisted window gate, without more and most certainly in combination, easily took the case to the jury on the question of force (see People v Yannucci,
Turning now to the less graphic, but here not less significant, events relating to the claimed impairment of right to counsel, these appropriately may be said to have begun on May 23, the date of Medina’s arrest. From then until the trial itself was begun the following October, appellant was never
On September 11, a month before trial, the People proffered a plea bargain. When Medina indicated that he was not then ready to accept it, the likelihood that the case would have to be tried in October became obvious. On October 2, Medina having finalized his rejection of the plea offer, the plan for trial that month became firm and, on October 5, the court again alerted the parties to be prepared to proceed, this time upon the completion of another trial then in progress in the part to which the Medina case had been assigned. On none of these dates — indeed, so far as the record reveals, during all the preceding months — was there the slightest hint that the appellant was harboring any dissatisfaction with his lawyer. Even on October 9, when the appellant was in court for the call of the case preparatory to commencement of its trial the next day, every indication was that both sides were ready to proceed.
On the morning of October 10, however, Medina’s counsel advised the court that on the preceding day his client had informed him that he had no confidence in him as his lawyer. Appellant personally confirmed this statement. All indications from the transcript are that the Trial Judge then took pains to reassure the appellant of the experience and competence of his counsel.
Little by little some explanations were eked out, but they seemed almost entirely frivolous or specious. His belaboring of counsel as inadequate was for such things as failure to move to dismiss the indictment on the ground that the District Attorney’s name appeared in type rather than script on the
After a great deal of colloquy, the Judge painstakingly explained to the appellant that his court-appointed lawyer could not be changed at will and without cause and that, construing the application as one to discharge counsel, the request would be denied. Medina then shifted his ground, stating that he "did not feel ready for trial yet”, but never did he satisfactorily indicate how a new attorney or an adjournment would add to his preparation. Despite this, the court offered to delay the daily commencement of trial to allow additional time for him to confer with counsel, promised to lend assistance in the procurement of witnesses, and in fact to "give [you] anything [you] want”. All to no avail. From the cold record what comes through is an impression that it would have been perfectly permissible for the trial court to have perceived in appellant’s responses an attempt — inchoate or deliberate — either to put off his day of reckoning or obtain delay for delay’s sake alone.
When the appellant would not accept the court’s decision that there was no basis for assigning a different counsel, the Judge warned him that, if he persisted in his refusal, he would have to try his case himself. It was also made clear to him that, while it was his right to proceed pro se, such a course would be unwise. To this Medina’s ready answer was that he nevertheless would rather do so. As was obvious from the adamancy with which he announced his decision, this waiver was not given perfunctorily. Nor was it cavalierly accepted. Even while respecting and accepting appellant’s determination to act contrary to its advice, the court contin
In treating with the questions that arose regarding the matter of counsel, the trial court was governed by now well-settled principles. Under our State and Federal Constitutions, an indigent defendant in a criminal case is guaranteed the right to counsel (NY Const, art I, § 6, People v Koch,
However, this is far from suggesting that an indigent’s request that a court assign new counsel is to be granted casually (People v Brabson,
In deciding whether "good cause” exists, a court must take into account such circumstances as whether present counsel is reasonably likely to afford a defendant effective assistance and whether the defendant has unduly delayed in seeking new assignment. The Commentary to section 5.3 of the ABA Standards (op. cit, p 51) balances these considerations quite nicely: "Since a relationship of mutual confidence between lawyer and client is important to the lawyer’s fulfillment of his professional functions, where good cause is shown by the defendant why that confidence does not exist the court should substitute counsel. Of course, the defendant should not be permitted to use this opportunity as a device to obstruct the orderly processes of the courts. If a last-minute motion for substitution of counsel is made for the purpose of delay, the court can recognize it as such and either refuse to make a new appointment or deny a continuance if one is made.”
So Trial Judges have been found to have abused their discretion by assigning an attorney to represent two defendants where a conflict of interest exists (see, e.g., Glasser v United States,
Measured against such criteria, we cannot say that in the case before us, the court abused its discretion in refusing to appoint another lawyer. Not only was Medina’s dissatisfaction first stated and his desire for new counsel first made known at the twelfth hour, but he offered no reason why he could not have done either earlier. Those of his criticisms of
Moreover, it is most doubtful that the criticisms were really for incompetence. Rather, as best as can be gathered from Medina’s statement to the court, his chief plaint was over his lawyer’s failure to agree with his client’s concepts as to appropriate trial tactics, a reason which the court was free to regard as insufficient cause for a cognizable claim of lack of confidence. True it is that appellant urged, for the first time on appeal, that counsel was derelict in failing to obtain the hospital report. But the record does not show that to be the fact. It indicates only that, in his colloquy with the court, Medina asked for a copy of the report. In order to do so, he had to have known of its existence and probably of the potential importance of its contents. Had the lawyer of whom he was then trying to rid himself not taken the report into account in preparing for trial, one would expect that the appellant would have brought that to the attention of the trial court. He never did.
It may also be significant that it had become known by then that the young prosecuting witness, who had left New York to resume residence in her native State and had been brought back specially for the trial, had indicated reluctance to return willingly if the case was adjourned.
Under all these circumstances, the court, in refusing to grant the application for change of counsel and in rejecting the supplementary request for delay, acted within the parameters of its discretion in order to prevent orderly processes from being obstructed without good cause.
Furthermore, when, in the face of the court’s carefully explained ruling denying a change of counsel or an adjournment, Medina, who was not totally unfamiliar with criminal procedure, so determinedly and so unequivocally insisted on rejecting counsel and proceeding pro se, the court had no recourse but to permit him to do so (Faretta v California,
Accordingly, we cannot say that, in the manner in which it exercised that authority in this case, the court did not strike a proper balance which took into account both its obligations to this particular defendant and its more general obligations to supervise the conduct of the trial before it (cf. People v Kelly,
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke.
Order affirmed.
Notes
. The accomplice was indicted with Medina, but he absconded before trial. The appellant was therefore tried alone.
. The public record of his admission to the Bar indicates that appellant’s trial attorney had been in practice for 38 years.
. The rulings on the counsel questions in the present case were made by the trial court at a time before our decision in People v McIntyre (supra).