State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 106679 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSEPH PUCCINI,

Appellant.

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Calendar Date: October 19, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

__________

Martin J. McGuinness, Saratoga Springs, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy

Blatchley of counsel), for respondent.

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Egan Jr., J.

Appeal from a judgment of the Supreme Court (Main Jr., J.),

rendered November 25, 2013 in Franklin County, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a weapon in the third degree.

In May 2012, in the Village of Saranac Lake, Franklin

County, defendant allegedly brandished a gun at an individual

while in the presence of a child, and a subsequent search by

police of defendant's residence yielded multiple handguns,

shotguns and rifles. It appears that defendant initially was

charged in the local justice court, at which time the Franklin
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County Conflict Defender's Office was assigned to represent him. 

According to the Conflict Defender, defendant immediately was

advised of a possible conflict of interest stemming from the

Conflict Defender's prior representation of an unrelated third

party in a criminal matter into which defendant apparently had

inserted himself as some sort of advocate. According to the

Conflict Defender, defendant had "no problem" with the assigned

representation and, over the course of the next year, the

Conflict Defender's Office was assigned to represent defendant

"in a total of six (6) criminal and family court matters."

In March 2013, defendant was indicted and charged with

criminal possession of a weapon in the third degree, endangering

the welfare of a child and menacing in the second degree, and the

matter was transferred to the Integrated Domestic Violence part

of Supreme Court. On May 9, 2013, the Conflict Defender moved

for permission to withdraw from further representation of

defendant, citing defendant's recently expressed dissatisfaction

with the services rendered; defendant did not file an affidavit

in support of that motion. Supreme Court denied the Conflict

Defender's motion to withdraw, as well as defendant's subsequent

pro se motion seeking the assignment of substitute counsel.

Pursuant to a plea agreement with the People, defendant

pleaded guilty to criminal possession of a weapon in the third

degree in full satisfaction of the indictment and waived his

right to appeal. Consistent with the terms of the plea

agreement, Supreme Court sentenced defendant to five years of

probation with the first 100 days to be served in the local

jail.1 This appeal by defendant ensued.

We affirm. Defendant, as so limited by his brief, contends

that Supreme Court failed to conduct a sufficient inquiry prior

1 At the time of sentencing, defendant had 106 days of jail

credit and, hence, Supreme Court deemed that aspect of the

sentence to be satisfied.
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to denying the respective motions to relieve the Conflict

Defender's Office and to assign defendant substitute counsel. 

Although this argument survives defendant's unchallenged appeal

waiver to the extent that it impacts upon the voluntariness of

his plea, such claim is unpreserved for our review in the absence

of an appropriate postallocution motion (see CPL 220.60 [3];

People v Morehouse, 140 AD3d 1202, 1203 [2016], lv denied 28 NY3d

934 [2016]; People v Rolfe, 83 AD3d 1219, 1220 [2011], lv denied

17 NY3d 809 [2011]).

To the extent that defendant's brief may be read as

asserting a violation of his constitutional right to counsel – an

issue that may, in certain defined instances, be raised for the

first time upon appeal (see People v McLean, 15 NY3d 117, 120-121

[2010]) – we find any such argument to be lacking in merit. 

While it is true that indigent defendants are entitled to

assigned counsel (see People v Smith, 18 NY3d 588, 592 [2012]),

"this entitlement does not encompass the right to counsel of

one's own choosing" (People v Porto, 16 NY3d 93, 99 [2010]). To

warrant the substitution of assigned counsel, defendant was

required "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 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 at 100 [internal quotation marks and

citations omitted]). Here, defendant failed – in the first

instance – to articulate serious complaints about the Conflict

Defender, and general dissatisfaction with counsel is

insufficient to warrant substitution (see People v Davenport, 58

AD3d 892, 895 [2009], lv denied 12 NY3d 782 [2009]). As our

review of the record confirms that none of the submissions

tendered in support of the respective motions demonstrated the

good cause required for the substitution of counsel, we reject

defendant's claim that he was denied his constitutional right to

counsel.
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Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court