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