                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    105167
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

ANTHONY ROBINSON,
                    Appellant.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                              __________


     Tracy A. Donovan-Laughlin, Cherry Valley, for appellant.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                              __________


Peters, P.J.

      Appeal from a judgment of the County Court of Otsego County
(Lambert, J.), rendered March 5, 2012, upon a verdict convicting
defendant of the crime of criminal sale of marihuana in the third
degree.

      Defendant was charged in an indictment with criminal sale
of marihuana in the third degree stemming from his alleged sale
of more than 25 grams of marihuana to a confidential informant
(hereinafter CI). Shortly before defendant's trial was scheduled
to commence, it was discovered that defendant's assigned attorney
had recently represented the CI in an unrelated criminal matter.
At a conference concerning the apparent conflict, defense counsel
suggested that the conflict of interest resulting from his
previous representation of the CI could be avoided by precluding
                              -2-                105167

the People from presenting the CI's testimony at trial. The
People opposed this relief and, instead, asked the court to grant
an adjournment and assign new counsel. County Court resolved the
matter by relieving defendant's attorney, assigning new counsel
to represent defendant and adjourning the trial for several
weeks. At the conclusion of the jury trial that ensued,
defendant was convicted as charged and sentenced as a second
felony offender to two years in prison followed by a term of
postrelease supervision. He now appeals.

      County Court did not abuse its discretion in substituting
assigned counsel against defendant's wishes.1 A criminal
defendant's right to counsel of his or her choice is not absolute
and may properly be circumscribed where defense counsel's
continued representation of the defendant would present a
conflict of interest (see Wheat v United States, 486 US 153, 159-
164 [1988]; People v Sides, 75 NY2d 822, 824 [1990]; People v
Tineo, 64 NY2d 531, 536-537 [1985]; People v Arroyave, 49 NY2d
264, 270-271 [1980]). Here, upon learning of the CI's identity,2
defendant's original assigned attorney informed the court that he
possessed confidential information from his prior representation
of the CI that would affect his ability to cross-examine that
witness, thereby establishing the existence of an actual conflict
of interest (see People v Tineo, 64 NY2d at 536-537; People v
Hall, 46 NY2d 873, 874-875 [1979], cert denied 444 US 848 [1979];
People v Gordon, 272 AD2d 133, 134 [2000], lv denied 95 NY2d 890
[2000]). Faced with "the dilemma of having to choose between
undesirable alternatives" in addressing the conflict (People v
Tineo, 64 NY2d at 536), County Court's decision to assign new
counsel and adjourn the trial rather than preclude the testimony
of the CI altogether constituted a proper exercise of its broad


    1
        We note that defendant makes no argument that he was
deprived of the effective assistance of counsel at trial, only
that he was deprived of the attorney of his choosing.
    2
        Defendant provides no basis upon which we could conclude
that the People failed to timely disclose the CI's identity or
should have otherwise discovered the existence of the conflict at
some earlier time.
                              -3-                105167

discretion under the circumstances presented (see id.; People v
Hall, 46 NY2d at 874-875; People v Gray, 21 AD3d 1398, 1399
[2005]; People v Segrue, 274 AD2d 671, 672-673 [2000], lv denied
95 NY2d 908 [2000]; People v King, 248 AD2d 639, 640 [1998], lv
denied 91 NY2d 1009 [1998]; People v Mackey, 175 AD2d 346, 348
[1991], lv denied 78 NY2d 969 [1991]).

      Nor are we persuaded that a juror who was suspected of
sleeping during portions of County Court's preliminary
instructions and a witness's testimony should have been
discharged as "grossly unqualified" (CPL 270.35 [1]; see People v
Buel, 53 AD3d 930, 931 [2008]; People v Simpkins, 16 AD3d 601,
601-602 [2005], lv denied 5 NY3d 769 [2005]). On both such
occasions, County Court promptly conducted a "probing and tactful
inquiry" of the juror in the presence of counsel (People v
Cargill, 70 NY2d 687, 689 [1987]; see People v Buford, 69 NY2d
290, 299 [1987]; People v Busreth, 35 AD3d 965, 967 [2006], lv
denied 8 NY3d 920 [2007]) and accepted the juror's assurances
that he had not fallen asleep, had heard everything that had
transpired and was able to continue serving as a juror. While
defendant takes issue with the court's failure to ask certain
questions of this juror, that contention is not preserved for our
review inasmuch as defendant did not object to the court's
inquiry (see People v Busreth, 35 AD3d at 967; People v Wright,
16 AD3d 1113, 1113 [2005], lv denied 4 NY3d 857 [2005]). Under
these circumstances, there is no basis to disturb County Court's
conclusion that the juror had not missed a significant portion of
the trial and, as such, was not grossly unqualified to continue
to serve as a juror (see People v Buel, 53 AD3d at 931; People v
Wright, 16 AD3d at 1114; People v Bailey, 258 AD2d 807, 808
[1999], lv denied 93 NY2d 1001 [1999]; compare People v Snowden,
44 AD3d 492, 493 [2007], lv denied 9 NY3d 1039 [2008]; People v
Adams, 179 AD2d 764, 765 [1992]).

      To the extent not specifically addressed herein,
defendant's remaining contentions have been considered and found
to be without merit.

     Lahtinen, Stein, Garry and Devine, JJ., concur.
                        -4-                  105167

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
