dissenting.
What compelling state interest was served by requiring this indigent Defendant, Donald Ayers, to stand trial for the third time for murder, represented only by two attorneys who were unsuccessful in his defense in the two previous trials on the same indictment for murder, whose removal from the case for good cause this Defendant had sought, and who themselves had asked leave to withdraw from the case?
The answer is none.
Moreover, it is a defendant’s confidence in his counsel which is critical to the effective presentation of a defense, not the confidence of the presiding justice in the counsel who had been appointed.
Upon learning that the case was again being set for jury trial, the Defendant promptly sought the appointment of counsel to defend him other than those lawyers who had represented him in the two losing efforts. For reasons not disclosed by the record, counsel let a week go by before they made this request known to the presiding justice; when they did, still ten days before the trial was scheduled to begin, counsel themselves also asked leave to withdraw. The presiding justice was adamant, announcing that the Defendant’s move was “in effect, just a back door way to get a continuance,” a charge which the Defendant expressly denied. So the murder trial ensued, with the same reluctant lawyers at counsel table presenting a less than zealous defense.1 The jury found him guilty.
On this sorry record today’s majority conclude that the Defendant had in that trial the effective “Assistance of Counsel for his defense” which, through the Fourteenth Amendment, the Sixth Amendment to the United States Constitution guarantees to every accused in our courts.
In the phrases of Mr. Justice White, it is a “tenuous and unacceptable legal fiction” to suggest that unwanted counsel “represents” a defendant. The defense presented by such counsel is not the defense guaranteed the accused by the Constitution “for in a very real sense, it is not his defense.” Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975).
The majority elevate form over substance. I cannot concur.
I take my stand with the United States Supreme Court when it declares:
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.
Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
I prefer to stand with Judge Oakes when for a panel in the Second Circuit he observes that the right to counsel is perhaps the most crucial right afforded criminal defendants, and counsel’s unwillingness to present particular arguments which a defendant may request functions to abridge that defendant’s right to counsel on appeal. Barnes v. Jones, 665 F.2d 427, 433 (2d Cir.1981).
The importance of “the guiding hand of counsel,” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), in our criminal justice system requires no reiteration. “In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.” Lakeside v. Oregon, 435 U.S. 333, 341, 98 *970S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978). It is only through the effective assistance of counsel that an accused is able to translate the full panoply of constitutional guarantees into personal rights that may aid his defense.
Effective assistance of counsel is of cardinal importance to an accused, whether he be wealthy or indigent. It is self-evident that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). Accordingly, the provision of effective assistance of counsel for the indigent defendant is not a matter of governmental largesse; it is a constitutional requirement. See Argersinger v. Hamlin, 407 U.S. 25, 37-38, 92 S.Ct. 2006, 2012-2013, 32 L.Ed.2d 530 (1977); Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. at 71-72, 53 S.Ct. at 65.
We face today the question of whether, under the unusual circumstances of this case, the presiding justice erred in denying the application of the Defendant’s appointed counsel to withdraw from the case.
For several reasons I submit that the Superior Court erred in denying defense counsel’s application to withdraw. First, although an indigent defendant may not always have a right to counsel of his choice,2 clearly he has the right to substitution of counsel for “good cause.”3 The Commentary to the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, § 5.3, p. 51, states it well:
Since a relationship of mutual confidence between lawyer and client is important to the lawyer’s fulfillment of his professional functions, where good cause is shown by the defendant why that confidence does not exist the court should substitute counsel.”
Twice represented by these attorneys and twice convicted of murder, as soon as the Defendant knew that a third trial was imminent, he conveyed to the Superior Court his dissatisfaction with counsel, his loss of confidence in them and his inability to communicate reasonably with them. Referring to prior experience with unwilling clients and the special need for a relationship of trust in a case such as this, the attorneys expressed their desire to terminate the relationship. This in the aggregate constituted “good cause.”
Second, in denying the withdrawal application the presiding justice gave undue consideration to the State’s interest in adhering to the announced schedule so that the Defendant would not be able to assert any privilege at his wife’s forthcoming trial. This matter was clearly extrinsic and irrelevant to the question of whether the Defendant merited new counsel in this case and should not have had any bearing on this decision. Furthermore, it was the justice who introduced the subject of potential impact on the wife’s trial at a time when the justice’s attention should have been focused on what was fair to this Defendant in his trial. In the course of discussing this potential impact, the justice abruptly shifting gears, announced that the Defendant had “some underlying motive.” This was conjecture on the part of the justice; it was not a matter of proof.
Third, the circumstances of this case were such that the State’s case would have suffered little even if — as assumed by the presiding justice — the substitution of counsel might have involved some delay. All the *971testimony of the State’s witnesses was safely preserved in the transcripts of the previous trials. The Superior Court has, to be sure, a legitimate and appropriate interest in “moving the docket,” but matters of administrative convenience must be deferred until the court has taken steps to assure the individual accused of a fair trial.
Taking these three factors together, in the circumstances of this case the Superior Court’s denial of defense counsel’s application to withdraw and failure to appoint new counsel constituted an abuse of discretion.4
To compel this Defendant, as the Superi- or Court did, to undergo a trial for murder with only the assistance of attorneys with whom he could not reasonably communicate and with whom conflicts of opinion had developed was, in effect, to deprive him of any counsel whatsoever. Cf. Brown v. Craven, 424 F.2d 1166 (9th Cir.1970).
An indigent’s request for new counsel should never be treated in such a cavalier manner. Where good cause can be shown, new counsel should be substituted. People v. Sawyer, 83 A.D.2d 205, 443 N.Y.S.2d 926, 928 (1981).
The value in interest here is the court’s duty to refrain from unreasonable interference with the individual’s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command. Smith v. Superior Court of Los Angeles County, 68 Cal.2d 547, 68 Cal.Rptr. 1, 9, 440 P.2d 65, 73 (1968). Cf. People v. Gzikowski, 32 Cal.3d 580, 186 Cal.Rptr. 339, 343, 651 P.2d 1145, 1149 (1982). An individual’s desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or a disruption of the orderly processes of justice unreasonable under the circumstances of the case. Id.
See generally Carrington, The Right to Zealous Counsel, 1979 Duke L.J. 1291; R. Herman, E. Single and J. Boston, Counsel for the Poor, 173-74 (1977).
While the error of the Superior Court in denying defense counsel’s application to withdraw is the issue on appeal, the anomoly of this case is that, first, the Superior Court ruled on a motion to continue which was never made, and in fact disavowed by the Defendant; and, second, today’s majority, after discussing “unwarranted delays,” proceeds to sustain on appeal this denial of a motion to continue which was never made!
While the majority are citing with approval Morris v. Slappy, - U.S. -, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), this case is distinguishable on several scores. Here the Defendant asked for new counsel as soon as he learned that a third trial had been scheduled. Here the previously appointed counsel asked leave to withdraw. Here the Defendant had been through two trials represented by these attorneys with unsatisfactory results.5
Today’s majority indulges in the same assumptions that the presiding justice implicitly made: that, of course, the Defendant would be found guilty and that his request — made almost three weeks before trial — was a delaying tactic and nothing more. The result — an indigent Defendant on trial for murder, represented by counsel in whom he had lost confidence, with whom he could not reasonably communicate, and who themselves wanted to withdraw from the case — was nothing more than a contrived cosmetic. The Defendant’s “right” to counsel in this ease became an empty formality, far short of what the Sixth *972Amendment was intended to guarantee to every accused.
The Superior Court may have gone through the motions, but, denying the Defendant counsel who had his confidence and with whom he could communicate effectively, it deprived him of his day in court. The perfunctory defense which the court permitted Donald Ayers was not, I submit, effective assistance of counsel. It was a sham.
I would sustain his appeal.
. In particular, it should be noted the limited cross-examination of certain key witnesses for the State and counsel’s stipulation to the admission of much of the State’s evidence were indicative of the uninspired nature of the defense.
. Tague, An Indigent’s Right to the Attorney of His Choice, 27 Stan.L.Rev. 73, 96-97 (1974); Annotation: Indigent Accused’s Right to Choose Particular Counsel Appointed to Represent Him, 66 A.L.R.3d 996 (1975).
. See McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981); United States v. Burkeen, 355 F.2d 241, 245 (6th Cir.) cert. denied sub. nom. Mat-lock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 592, 375 N.E.2d 768, 772 (1978); Thomas v. States, 94 Nev. 605, 584 P.2d 674, 676 (1978); Commonwealth v. Velasquez, 437 Pa. 262, 265, 263 A.2d 351, 353-44 (1970).
. Parenthetically, it may be noted that, after losing the first appeal which the Defendant brought to our Court, the State took the opportunity to change counsel for the present appeal. It would have been no more than even-handed justice to have accorded this Defendant a similar opportunity to substitute new counsel for the old.
. It may be noted that after compelling the Defendant to go through a third trial with the same reluctant counsel, the Superior Court did permit different counsel to appear for the Defendant on this appeal.