People v. Smith

178 A.D.3d 965

112 N.Y.S.3d 522 (Mem)

The PEOPLE, etc., Respondent,

v.Anthony Wayne SMITH, Appellant.

2015–09902

Ind.No. 2249/14

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

Submitted—October 21, 2019

December 18, 2019

Richard L. Herzfeld, P.C., New York, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Karla Lato and Thomas Costello of counsel), for respondent.

RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Richard Ambro, J.), rendered September 8, 2015, convicting him of assault in the third degree and criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's determination denying the defendant's application, made on the eve of trial, to substitute counsel. "The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option" ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; People v. Cheeks, 107 A.D.3d 1013, 1014, 966 N.Y.S.2d 893 ). Counsel may be substituted at the trial court's discretion where good cause is shown (see People v. Smith, 18 N.Y.3d 588, 592, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Cheeks, 107 A.D.3d at 1014, 966 N.Y.S.2d 893 ). Here, the defendant's generalized and conclusory complaints about defense counsel were belied and contradicted by the record, thereby dispensing with the need for further inquiry by the trial court before ruling on the defendant's application (see People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ; People v. Cheeks, 107 A.D.3d at 1014, 966 N.Y.S.2d 893 ). Accordingly, the defendant's related contention that his plea of guilty and waiver of his right to appeal were not knowingly, intelligently, and voluntarily made because his application for substitution of counsel was improperly denied is without merit.

The defendant's valid waiver of his right to appeal precludes our review of the defendant's challenge to the adverse pretrial suppression ruling pertaining to a photo array identification procedure (see People v. Ward, 126 A.D.3d 730, 5 N.Y.S.3d 468 ; People v. Corbin, 121 A.D.3d 803, 993 N.Y.S.2d 746 ). The defendant's waiver also precludes our review of the...