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.
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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