=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 161
The People &c.,
            Respondent,
        v.
William O'Daniel,
            Appellant.




          Bruce R. Bryan, for appellant.
          Jaime A. Douthat, for respondent.




PIGOTT, J.:
          Defendant, facing two counts of rape in the first
degree, one count of attempted rape in the first degree, two
counts of sexual abuse in the first degree, and two counts of
endangering the welfare of a child, retained attorney Martineau
to represent him.   Martineau was suffering at the time from a

                               - 1 -
                                - 2 -                        No. 161

debilitating medical condition.   On March 1, 2010, Martineau
requested an adjournment of defendant's trial, scheduled to begin
the following week in County Court, due to a "flare-up" of his
medical condition.   The request was granted.
           On April 28, 2010, following a hospitalization,
Martineau requested another adjournment on medical grounds, but
also mentioned that if adjournment were problematic for County
Court then he would "advise [his] client and assist him in
attempting to obtain substitute counsel in an effort to move this
matter along."   The trial was rescheduled to August 16, and
finally, after the People sought an adjournment, to October 12,
2010.
           In the fall of 2010, Martineau's health was again poor.
At the suggestion of County Court, Martineau identified a "second
chair" who would take over if his health worsened: attorney
Bruno, who had represented defendant at his arraignment.
Martineau took a turn for the worse and defendant's file was
delivered to Bruno's office on September 30.    Bruno met with
defendant the following day.
           On October 5, 2010, a week before trial was due to
start, attorney Bruno represented defendant at a conference in
County Court.    On behalf of defendant, Bruno moved to adjourn the
trial date, mentioning that defendant believed "that the legal
system . . . [was] being unfair to him because of Mr. Martineau's
health."   However, Bruno also informed the court that he had


                                - 2 -
                                 - 3 -                       No. 161

"reviewed [defendant's] entire file" and was "confident" that,
should the motion be denied, he would "be prepared and ready to
go forward to trial" the following week.   Bruno added that he had
explained to defendant that County Court had an "obligation to
move matters along in a timely fashion."   The People opposed the
adjournment motion, and County Court denied it.
          On October 12, 2010, the day trial was to begin, Bruno
"renew[ed] the motion to adjourn the trial," on behalf of
defendant, stating that defendant "from his perspective, is of
the opinion that we need more time to prepare for the trial."
Again, the People opposed the motion, and County Court denied it,
noting that Bruno had not indicated "that he is unable to proceed
directly" or "that he is in need of extra time with regard to a
specific need to prepare in some specific way."   Jury selection
began, and the trial followed.
          The jury found defendant guilty of all charges.
Defendant moved to set aside the verdict under CPL 330.30.    Bruno
and Martineau filed affidavits stating that the latter had been
unable to assist with the trial; that Bruno had first reviewed
defendant's file 12 days before the trial began; and that until a
few days before trial defendant expected Martineau to be his
trial attorney.   Defendant contended that County Court's denial
of the October motions for adjournment violated his right to the
retained attorney of his choice.    County Court denied the CPL
330.30 motion and in March 2011, with the now-recovered Martineau


                                 - 3 -
                                - 4 -                          No. 161

serving as defendant's counsel, imposed sentence.
            Defendant appealed, raising several challenges,
principally that County Court violated his right to choice of
counsel.   Defendant contends that County Court did so when it
denied the October adjournment requests without making any
inquiry into defendant's choice of counsel.
            The Appellate Division affirmed County Court's
judgment, observing with respect to defendant's primary argument
that the record contained no "indication that defendant was
unwilling to proceed to trial with Bruno as counsel or, more to
the point, that he sought further adjournment of the trial date
for the express purpose of retaining another attorney.   Rather,
defendant . . . instructed Bruno to seek two further adjournments
in order to give Bruno more time to prepare.   Bruno, however,
voiced no concerns as to his readiness to proceed.   To the
contrary, Bruno indicated   . . . that he had reviewed defendant's
'entire file,' met with defendant 'quite frequently' and was
'confident' that, if the trial proceeded as scheduled, he would
be 'prepared and ready to go forward'" (105 AD3d 1144, 1146-1147
[3d Dept 2013]).
            A Judge of this Court granted defendant leave to
appeal.    We now affirm.
            A defendant who does not require appointed counsel has
a right under both Federal and State constitutions to choose who
will represent him (see United States v Gonzalez-Lopez, 548 US


                                - 4 -
                               - 5 -                          No. 161

140, 144 [2006]; People v Arroyave, 49 NY2d 264, 270 [1980]).
"The constitutional guarantee to be represented by counsel of
one's own choosing is a fundamental right" (Arroyave, 49 NY2d at
273).   Nevertheless, "the right to counsel of choice is
qualified, and may cede, under certain circumstances, to concerns
of the efficient administration of the criminal justice system"
(People v Griffin, 20 NY3d 626, 630 [2013]).
           In particular, we have held that a defendant may not
use the right to counsel of choice "as a means to delay judicial
proceedings.   The efficient administration of the criminal
justice system is a critical concern to society as a whole, and
unnecessary adjournments for the purpose of permitting a
defendant to retain different counsel will disrupt court dockets,
interfere with the right of other criminal defendants to a speedy
trial, and inconvenience witnesses, jurors and opposing counsel"
(Arroyave, 49 NY2d at 271).   In short, appellate courts must
recognize "a trial court's wide latitude in balancing the right
to counsel of choice against the needs of fairness and against
the demands of its calendar" (Gonzalez-Lopez, 548 US at 152
[citations omitted]).
           Significantly, in the present case, defendant does not
contend that he expressly requested new counsel on October 5 or
October 12, 2010 and that the request was wrongly denied.
Rather, defendant's principal argument is that when he moved,
through counsel, for adjournment, County Court was obliged to


                               - 5 -
                                - 6 -                         No. 161

inquire of him whether he was in fact seeking new counsel.     We
disagree.
            When newly retained defense counsel requests an
adjournment of trial and states that defendant believes that the
trial would otherwise be unfair, the better practice would be to
inquire of counsel and, if necessary, defendant as to whether
defendant seeks an adjournment so that he may have the
opportunity to retain new counsel or so that his counsel may
become better prepared for trial.   However, in this case, County
Court did not violate any of defendant's constitutional rights by
denying the adjournment motions without that inquiry.    On the
record before us on direct appeal, when the colloquies of October
5 and October 12 are considered together, no communication was
made to County Court from which it would appear that defendant
was asking for the opportunity to retain new counsel, or for an
adjournment in the hope that Martineau would recover quickly
enough to become his trial counsel.     Rather, defendant simply
sought an adjournment to give Bruno more time to prepare.     Under
these circumstances, there was no obligation on the part of
County Court to inquire as to whether defendant was seeking new
counsel.
            Defendant's remaining contentions lack merit.
            Accordingly, the order of the Appellate Division should
be affirmed.




                                - 6 -
People v William O'Daniel
No. 161




LIPPMAN, Chief Judge (dissenting):
             There is no dispute that the Sixth Amendment right to
counsel entails the right of a criminal defendant to be
represented by the attorney he or she has retained (see United
States v Gonzalez-Lopez, 548 US 140, 144 [2006]).     Nor, after
Gonzalez-Lopez, is it debatable that the wrongful refusal of a
court to honor a defendant's prerogative to retain his or her
lawyer is per se reversible, error of this description having
been deemed structural for its potential to subvert the very
framework of a criminal proceeding in ways resistant to harmless
error analysis (id. at 150).     But here, on facts establishing
that defendant was, without compelling justification, forced to
proceed to trial with an attorney other than the one he had
retained, the majority denies relief.
             Mr. Martineau was defendant's attorney of record and
Mr. Bruno, who stood in for him at defendant's trial, was never
substituted for Martineau, or even retained as cocounsel by
defendant.    All concerned, most notably the trial court, which
had itself set in motion the sequence leading to Mr. Bruno's




                                 - 1 -
                                - 2 -                         No. 161

assumption of the role of trial counsel,1 knew that Mr. Bruno was
not appearing at defendant's behest but at the request of Mr.
Martineau to accommodate the trial court's concern with meeting
"Standards and Goals."
            Even if defendant's October 5th adjournment request had
been ambiguous as to whether it involved an assertion of his
right to retain his own lawyer, his subsequent request for a
trial postponement, made just one week later, immediately before
the commencement of the trial, could have left no doubt that
defendant was invoking his right to be represented by an attorney
of his choosing.    At that time, Bruno, at defendant's insistence,
requested a stay, urging that one was mandatory pursuant to CPLR
321 (c), which, in substance, requires a 30-day stay of
proceedings against a party whose attorney becomes disabled to
permit that party to retain other counsel.    After reading
verbatim the relevant portion of the statute,2 Bruno reiterated


     1
       Mr. Bruno's introduction to the matter was in response to
the trial judge's suggestion to attorney Martineau that, in view
of his still tenuous health as of September 2010, he "seek out a
second chair." The suggestion, the court explained, was made
"purely [as] a matter of fairness and Standards and Goals."
     2
         The relied upon statute stipulates that

            "If an attorney dies, becomes physically or
            mentally incapcitated, or is removed,
            suspended or otherwise becomes disabled at
            any time before judgment, no further
            proceeding shall be taken in the action
            against the party for whom he appeared,
            without leave of the court, until thirty days

                                - 2 -
                                - 3 -                       No. 161

that Mr. Martineau, whom all concerned understood to be disabled,
"is retained counsel by Mr. O'Daniel."
            Defendant makes a plausible argument that CPLR 321 is
applicable in criminal proceedings3 and that the trial court was
therefore obliged, in light of Mr. Martineau's disability, to
stay the proceedings so that he could retain new counsel.   But
even if CPLR 321 is not applicable in criminal matters, the
salient point is that defendant's reliance upon it should have
placed the court on unequivocal notice that defendant was asking
for an opportunity to decide for himself who would represent him
at trial.   To the extent that he was reasonably able to do so
through a reluctant interlocutor not of his choosing whom he may
very well have elected not to retain,4 defendant had asserted his
fundamental right to select his own lawyer, and the court was


            after notice to appoint another attorney has
            been served upon that party either personally
            or in such manner as the court directs" (CPLR
            321 [c]).
     3
       Defendant points out that article I, section 6 of the
State Constitution provides that "In any trial in any court
whatever the party accused shall be allowed to appear and defend
in person and with counsel as in civil actions" (emphasis added).
The argument is thus made that if a stay is required in civil
actions to allow representation by counsel -- which is to say by
chosen counsel -- when a defendant's attorney becomes disabled,
the same rule must be applicable in criminal proceedings.
     4
       Defendant it appears had previously been represented by
Mr. Bruno in a Family Court matter. It is thus likely that his
decision to hire Mr. Martineau in this very serious criminal
matter reflected a considered preference for his representational
skill set over that of Mr. Bruno.

                                - 3 -
                               - 4 -                          No. 161

bound to honor that right unless there was some compelling reason
not to (see People v Griffin, 20 NY3d 626, 630 [2013]; People v
Knowles, 88 NY2d 763, 769 [1996]).
           The closest the court came to identifying such a reason
was when it noted that the case had been pending a long time and
that fairness required a trial without further delay.   But the
lengthy pendency of the prosecution was attributable to
adjournments requested by both sides and there was, in the
context of a postponement request by defendant, no apparent
urgency to try the matter, which was based on relatively recent
allegations of misconduct said to have taken place years before.
We have, of course, observed that a defendant's right to choose
his attorney "is qualified in the sense that a defendant may not
employ such right as a means to delay judicial proceedings"
(People v Arroyave, 49 NY2d 264, 271 [1980]), but here it is
clear that defendant's request for a stay expressly to enable the
exercise of his right to choose his lawyer, was not a dilatory
tactic.   The serious deterioration in attorney Martineau's
condition barely two weeks prior to the October 12, 2010 trial
date was not a circumstance over which defendant had any control
and there is no record support for the suggestion that, in
requesting an additional postponement of the trial just days
after learning that Mr. Martineau would be unable to appear for
him if the trial commenced on October 12th, defendant was
engaging in an eleventh hour manipulation to prolong his period


                               - 4 -
                                    - 5 -                           No. 161

of release on bail.     The court was not obliged to put off the
trial indefinitely, but it was required, given the fundamental,
indeed structural right implicated, at least to inquire whether
Mr. Martineau could be expected to recover and try the case
within a reasonable time5 and, if that did not seem likely, to
afford defendant a reasonable opportunity himself to retain
substitute counsel.     I do not believe that forcing defendant
forthwith to trial with a lawyer he had not retained was a
constitutionally permissible alternative.
*   *       *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order affirmed. Opinion by Judge Pigott. Judges Graffeo, Read,
Smith, Rivera and Abdus-Salaam concur. Chief Judge Lippman
dissents in an opinion.

Decided October 21, 2014




        5
       It appears that Martineau recuperated sufficiently to
resume his professional responsibilities by December 2010, and,
in fact was present at defendant's sentencing in March 2011 at
which time he thanked Bruno for standing in for him "on very
short notice."

                                    - 5 -
                                - 6 -                           No. 161

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order affirmed. Opinion by Judge Pigott. Judges Graffeo, Read,
Smith, Rivera and Abdus-Salaam concur. Chief Judge Lippman
dissents in an opinion.

Decided October 21, 2014




                                - 6 -
