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

512
KA 08-02358
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MELCHI N. JONES, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered May 15, 2008. The judgment convicted defendant, upon
his plea of guilty, of criminal possession of a controlled substance
in the fifth degree, improper lane: right turn, no seat belt and
operating a motor vehicle without an inspection certificate.

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

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of criminal possession of a controlled substance in the
fifth degree (Penal Law § 220.06 [5]) and various violations of the
Vehicle and Traffic Law, defendant contends that County Court failed
to make an appropriate inquiry into defendant’s allegations of a
potential conflict with his assigned counsel and thereby deprived
defendant of his right to counsel of his choosing. We reject that
contention.

     “It is well settled that an indigent defendant is guaranteed the
right to counsel by both the Federal and New York State Constitutions
(see US Const 6th Amend; NY Const, art I, § 6), but this entitlement
does not encompass the right to counsel of one’s own choosing . . .
While a court has a duty to investigate complaints concerning counsel,
‘this is far from suggesting that an indigent’s request that a court
assign new counsel is to be granted casually’ . . . Whether counsel is
substituted is within the ‘discretion and responsibility’ of the trial
judge . . . and a court’s duty to consider such a motion is invoked
only where a defendant makes a ‘seemingly serious request[ ]’ . . .
Therefore, it is incumbent upon a defendant to make specific factual
allegations of ‘serious complaints about counsel’ . . . If such a
showing is made, the court must make at least a ‘minimal inquiry,’ and
                                 -2-                           512
                                                         KA 08-02358

discern meritorious complaints from disingenuous applications by
inquiring as to ‘the nature of the disagreement or its potential for
resolution’ ” (People v Porto, 16 NY3d 93, 99-100; see generally
People v Sides, 75 NY2d 822, 824-825; People v Medina, 44 NY2d 199,
207).

     Here, on the day trial was scheduled to begin, defendant informed
the court that, while he did not wish to represent himself, he also
did not want to be represented by his assigned counsel. Defendant
faulted defense counsel for failing to communicate with him, failing
to provide him with certain paperwork, and failing to obtain a more
favorable plea offer.

     We agree with the People that defendant’s complaints were not
“ ‘serious complaints about counsel’ ” (Porto, 16 NY3d at 100).
Rather, defendant “made only vague assertions that defense counsel was
not in frequent contact with him and did not aid in his defense”
(People v MacLean, 48 AD3d 1215, 1217, lv denied 10 NY3d 866,
reconsideration denied 11 NY3d 790; see People v Velasquez, 66 AD3d
1460, 1461, lv denied 13 NY3d 942). Even assuming, arguendo, that
defendant’s complaints about defense counsel “suggest[ed] a serious
possibility of good cause for the substitution [of counsel]” and
thereby established a need for further inquiry (People v Faeth, 107
AD3d 1426, 1427, lv denied 21 NY3d 1073 [internal quotation marks
omitted]), we conclude that “the court afforded defendant the
opportunity to express his objections concerning defense counsel, and
the court thereafter reasonably concluded that defendant’s objections
were without merit” (People v Bethany, 144 AD3d 1666, 1669; see Faeth,
107 AD3d at 1427).

     Contrary to defendant’s further contention, the court did not
improperly focus on the timeliness of the request. The constitutional
right to counsel “does not bestow upon a criminal defendant the
absolute right to demand that his trial be delayed while he selects
another attorney to represent him at trial” (People v Arroyave, 49
NY2d 264, 271; see Porto, 16 NY3d at 101).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
