This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 110
The People &c.,
            Respondent,
        v.
Kareem Washington,
            Appellant.




          Kami Lizarraga, for appellant.
          Marc I. Eida, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          Defendant Kareem Washington was arrested in 2008 in
connection with a gunpoint robbery that occurred in the Bronx.
Prior to trial, he filed a pro se motion seeking new defense
counsel; defendant's application included a form "Affidavit in

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Support of Motion for Reassignment of Counsel," in which he
circled every one of the 10 possible grounds of ineffectiveness
listed.   Defendant also included a "Statement of Facts," in which
he alleged that his attorney "failed to produce . . . discovery
materials" and "denied to formulate an Omnibus motion to contest
. . . lack of identification, or to preserve requested pre-trial
hearings."   Defendant further asserted that his attorney ignored
his requests to counter "the lack of identification and the
negative results of the DNA test," and "refused to take heed to
defendant's factual version of events, and to further discuss or
develop possible defense strategies beneficial to him."    The
motion papers were postmarked May 14, 2011, about six weeks
before trial, but defendant mailed the materials to "Part 80,"
and the trial was moved to Part 13.    Although it is not clear
from the record whether defense counsel or the District Attorney
actually received the papers prior to trial, defendant did not
mention the motion to Supreme Court or counsel before or during
trial.
          On July 7, 2011, a jury convicted defendant of first-
degree robbery (Penal Law § 160.15).    At the sentencing hearing
on July 28, 2011, the judge advised the People and defense
counsel that he had received the pro se motion four days after
the guilty verdict.   Supreme Court asked defense counsel if he
wanted to comment on the motion, to which counsel responded that
he "d[id]n't want to put [him]self in opposition to [defendant]."


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Counsel added that certain items in the motion were "incorrect,"
but he did not elaborate.
          The judge then asked defendant why he did not call
attention to the motion or any of his complaints.    Defendant
claimed that he had tried to talk with the judge about the motion
before trial, but a court officer prevented him.    The judge
expressed disbelief about this explanation and noted that, in any
event, the defendant "had many, many, many, many other moments
after that" when he and the judge "spoke[] person to person and
[defendant] never raised this."    On the merits, the judge viewed
defendant's allegations skeptically, "based on [his] observations
during the course of the trial."   Specifically, the judge
addressed defendant as follows:
          "You say things in here that are not true.
          You say that you had no discovery.     It was
          evident to me that you had discovery. It was
          evident to me you had all the discovery. You
          complained about negative DNA results.    The
          testimony in the trial is that there [were]
          positive DNA results.    You complained that
          [your attorney] didn't discuss strategy with
          you. I know he discussed strategy with you.
          I don't see anything in here based on my
          observations during the course of the trial
          that any of this is true."
          The judge then invited defendant to air his complaints
of ineffective assistance.   Defendant asserted that defense
counsel "never did discuss any strategy" with him before trial,
despite defendant's numerous requests.   Defendant also alleged
that counsel failed to meet with him before trial, except for a
"seven to eight minute[]" video conference a week or two

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beforehand, during which he and his attorney didn't really
"connect."   Apart from this video conference, defendant
complained, he "never really had a chance to discuss anything
with [counsel] prior to being in court."    Finally, defendant
alleged that his attorney provided him only "some of the
discovery" that he had sought.    Defendant eventually admitted,
however, that he did receive the discovery he requested.
          The judge next asked defense counsel to respond to
defendant's statements, and counsel explained what he had done
prior to trial; specifically, he
          "recall[ed] speaking to [defendant] on the
          phone. The video conference was, in fact, we
          had one, it was longer than that. The only
          problem was they had delivered [defendant]
          late to the conference area and I think it
          went for about fifteen minutes or so.     From
          the outset, I think it's pretty clear that
          strategy here was to indicate to the jury that
          the   identification   was  incorrect.      We
          challenged identification here during the
          hearing before the trial, cross examination
          dealt with identification. I think that was
          clearly what the strategy was according to
          what [defendant] was dealing with."
The judge also asked defense counsel if he discussed trial
strategy with his client and if he provided defendant with
discovery.   Counsel stated that he was "sure" he discussed
strategy with defendant before trial, and that he gave defendant
"a good deal of discovery," "everything I had up until the
beginning of trial."
          Supreme Court summarized that while defendant claimed
that his attorney "refused to take heed to the defendant's

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factual version of events and to further discuss or develop
possible strategies beneficial to the defendant, [defense
counsel] says that happened and the defense of lack of
identification was presented at the trial."   The judge also noted
that defense counsel stated that he had given defendant all the
discovery materials he possessed, once he had them.   The judge
commented that the motion was untimely and, in any event, "from
what [he] heard from [defendant] and [counsel], [he] would not
have granted the motion" because defendant had not been truthful
about what his attorney "did and did not do," and he "accept[ed]"
defense counsel's version of events.   Indeed, the judge added,
he had observed that defendant "c[a]me into court every day with
discovery in [his] hands, consulted with counsel during jury
selection and trial, [and] decided not to testify after
conferring with counsel."
          Based on his personal observations and inquiry, the
judge denied defendant's motion and sentenced him as a persistent
felony offender to an indeterminate prison term of twenty-two
years to life.   Defendant appealed, and the Appellate Division
affirmed (115 AD3d 451 [1st Dept 2014]).   The court determined
that the verdict was not against the weight of the evidence and,
relying on People v Nelson (7 NY3d 883 [2006]), that defendant
was not deprived of the effective assistance of conflict-free
counsel when his attorney explained the actions he took on his
client's behalf.   A Judge of this Court granted defendant leave


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to appeal (24 NY3d 965 [2014]), and we now affirm.
            "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 NY2d 822, 824 [1990]).    A defendant may be
entitled to new counsel, however, "upon showing good cause for a
substitution, such as a conflict of interest or other
irreconcilable conflict with counsel" (id. [internal quotation
marks omitted]).    Here, defendant claims that he was entitled to
new defense counsel because counsel's responses to the
allegations of ineffectiveness created an actual conflict of
interest.
            Although an attorney is not obligated to comment on a
client's pro se motions or arguments, he may address allegations
of ineffectiveness "when asked to by the court" and "should be
afforded the opportunity to explain his performance" (People v
Mitchell, 21 NY3d 964, 967 [2012]; Nelson, 7 NY3d at 884).
We have held that counsel takes a position adverse to his client
when stating that the defendant's motion lacks merit (Mitchell,
21 NY3d at 966), or that the defendant, who is challenging the
voluntariness of his guilty plea, "made a knowing plea . . .
[that] was in his best interest" (People v Deliser, decided with
Mitchell, 21 NY3d at 966).    Conversely, we have held that counsel
does not create an actual conflict merely by "outlin[ing] his
efforts on his client's behalf" (People v Nelson, 27 AD3d 287,


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287 [1st Dept 2006], affd Nelson, 7 NY3d at 884) and "defend[ing]
his performance" (Nelson, 7 NY3d at 884).
            Applying these settled principles to the facts in this
case, we conclude that defense counsel's comments in response to
the judge's questions did not establish an actual conflict of
interest.   Defense counsel did not suggest that his client's
claims lacked merit.     Rather, he informed the judge when he met
with defendant and for how long, what they discussed, what the
defense strategy was at trial and what discovery he gave or did
not give to defendant.    Thus, he never strayed beyond a factual
explanation of his efforts on his client's behalf.
*   *   *    *   *   *    *   *    *      *   *   *   *   *   *     *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided June 25, 2015




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