Defendant was convicted after trial before a jury of criminal possession and selling of a dangerous drug. A motion for the suppression of evidence was denied. The case went to trial. The jury was selected. Defendant was represented by the same attorney who had represented him on the motion to suppress. After the selection of the jury, the defendant personally moved for permission to select another attorney. After a hearing, the application was denied. The case proceeded. The defendant stood mute. His attorney was present throughout. The appeal is from the denial of the suppression as well as the judgment of conviction.
The suppression application challenges as invalid the arrest made without a warrant and the search incident to the arrest disclosing a substantial quantity of narcotics. There is sufficient evidence to support probable cause for the arrest. Surveillance of the defendant led to his ground floor apartment at 820 Boynton Avenue, Bronx. Three police officers observed within less than an hour, on separate occasions, two males knock at the door, enter the apartment and depart within a short time. Thereafter, one of the officers entered the lobby of the apartment house for the purpose of getting information in aid of a search warrant. The said officer then observed another male person, one Isaacs, enter the building and ring the apartment bell of defendant. In response, defendant opened the door and conversed with Isaacs briefly in the doorway. Defendant then closed the door leaving Isaacs standing in the doorway, and shortly reappeared. The officer observed money passing from Isaacs to the defendant, who then passed brown paper envelopes to Isaacs. The officer who was a short distance away from the open door proceeded toward it. As he did so, Isaacs attempted to flee from the building. The defendant proceeded to shut the door of his apartment but the officer succeeded in forcing the door open and, after identifying himself as an officer, arrested the defendant. At that time, in plain view of the officer were the narcotics and paraphernalia therefor on the kitchen table. Isaacs was intercepted by another officer and also arrested.
The defendant testified at the suppression hearing. A number of witnesses testified in his behalf. The substance of the defendant’s case with regard to the suppression hearing is that he was arrested on the street, his apartment keys taken from his person and the apartment opened and searched without his consent. The defense presented an issue of credibility as to the testimony
Defendant’s claim regarding deprivation of counsel on the trial of the indictment is without substance. He retained one Geller, an attorney. Apparently Geller was otherwise engaged at the time the suppression hearing was had. Geller’s associate, Rubin, interviewed the defendant and with defendant’s consent represented him at the suppression hearing. The suppression hearing began April 21, 1971 and continued three days. The record thereof demonstrates the defendant was well represented.
The trial of the indictment commenced May 24, 1971. The jury was selected by Mr. Rubin. The defendant participated in the selection of the jury. Mr. Rubin was thoroughly familiar with the facts of the case and there was no indication of any dissatisfaction until after the selection of the jury. Mr. Rubin, in addition, entered a challenge to the panel as unrepresentative of the population of Bronx County. Both on the motion to suppress and the trial of the indictment Mr. Rubin moved for daily transcripts of the proceedings on the ground that defendant and his family were financially destitute.
On the second day of the trial of the indictment, May 25, 1971, after the jury had been selected to the satisfaction of the defendant and the People, the defendant for the first time moved for leave to change his attorney. Despite his prior plea of poverty, including his family, the defendant claimed his family had made tentative arrangements for other representation. However, defendant admitted he had not spoken with the other attorney. The sole reason assigned by defendant for the change was general dissatisfaction with the negotiations for a plea conducted by Mr. Rubin in his behalf.
The court offered the defendant three alternatives: (1) to continue representation by Rubin; (2) to conduct his defense with Rubin present for consultation; or (3) to conduct his own defense. Throughout the trial the court carefully advised the defendant of his rights and Mr. Rubin was present and available to the defendant.
It would appear from this record that the defendant was of the opinion the evidence against him was too conclusive to admit of any defense, and that the application to substitute trial
The judgment should be affirmed.