        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1136
KA 12-01260
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY BOOKER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 7, 2012. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). The
conviction was based on defendant’s possession of various narcotics
that were found by parole officers during a search of defendant’s
residence following a parole violation. Defendant’s assigned counsel
filed a motion to suppress the seized evidence. On the date of the
scheduled suppression hearing, defendant complained to County Court,
for the first time, about the quality of assigned counsel’s
representation and sought to relieve assigned counsel. In expressing
his dissatisfaction with assigned counsel, defendant requested that he
be allowed to proceed pro se and, upon the court’s refusal to relieve
assigned counsel, defendant requested an adjournment to permit him to
retain new counsel. The court noted that defendant had previously
appeared before the court on numerous occasions, but had never
mentioned a desire to retain new counsel because of dissatisfaction
with assigned counsel. The court also noted that it had not received
any correspondence from the new counsel that defendant claimed to have
contacted. The court thus denied defendant’s request for an
adjournment and, following the suppression hearing at which defendant
was represented by assigned counsel, the court denied the suppression
motion. Defendant thereafter retained new counsel and entered a
guilty plea. We affirm.
                                 -2-                          1136
                                                         KA 12-01260

      Contrary to defendant’s contention, he was not denied his
constitutional right to proceed pro se. Defendant’s request to
proceed pro se “ ‘was made in the context of a claim expressing his
dissatisfaction with his attorney and was not unequivocal’ ” (People v
White, 114 AD3d 1256, 1257, lv denied 23 NY3d 1026; see People v
Gillian, 8 NY3d 85, 88; People v Alexander, 109 AD3d 1083, 1084). In
any event, we note that defendant thereafter “ ‘abandoned his request
to proceed pro se and, instead, requested [an adjournment to retain]
new counsel’ ” (White, 114 AD3d at 1257; see People v Hayden, 250 AD2d
937, 938, lv denied 92 NY2d 879, reconsideration denied 92 NY2d 982,
cert denied 526 US 1028). Although defendant’s contention that the
court abused its discretion in denying his request for an adjournment
to permit 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 Griffin, 20 NY3d
626, 630; see generally People v Hansen, 95 NY2d 227, 230-231), we
reject that contention. We note that “ ‘good cause [for an
adjournment to permit a defendant to retain new counsel] does not
exist [where, as here,] defendant[] [is] guilty of delaying tactics’ ”
(People v Santiago, 111 AD3d 1383, 1384, lv denied 23 NY3d 1025,
quoting People v Linares, 2 NY3d 507, 511). We thus conclude that,
under the circumstances of this case, “defendant was not denied his
right to retain counsel of his own choosing and the . . . court did
not abuse its discretion in denying defendant’s request to delay the
[hearing]” (People v Michalek, 195 AD2d 1007, 1008, lv denied 82 NY2d
807).

      Defendant’s further contention that he was denied effective
assistance of counsel based on an alleged conflict of interest with
assigned counsel “does not survive [his] plea[] of guilty where, as
here, ‘[t]here is no showing that the plea bargaining process was
infected by any allegedly ineffective assistance or that defendant
entered the plea[] because of [assigned counsel’s] allegedly poor
performance’ ” (People v Watkins, 2 AD3d 1391, 1391, lv denied 2 NY3d
747).

     We have examined defendant’s remaining contention and, to the
extent that it is properly before us in the context of his plea of
guilty, we conclude that it does not require modification or reversal
of the judgment.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
