UBBINK, DANIEL S., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1176
KA 09-00593
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DANIEL S. UBBINK, 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 Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered January 30, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal contempt in the
second degree (four counts) and stalking in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count of stalking in the fourth degree
(Penal Law § 120.45 [2]) and four counts of criminal contempt in the
second degree (§ 215.50 [3]). Contrary to defendant’s contention, he
was not denied due process based on Supreme Court’s failure, sua
sponte, to conduct a competency hearing pursuant to CPL 730.30 (2)
(see People v Chicherchia, 86 AD3d 953, 954, lv denied 17 NY3d 952).
“A defendant is presumed competent . . . , and the court is under no
obligation to issue an order of examination . . . unless it has
‘reasonable ground . . . to believe that the defendant [is] an
incapacitated person’ ” (People v Morgan, 87 NY2d 878, 880). Where
the court has “ ‘reasonable ground for believing that a defendant is
in such state of idiocy, imbecility, or insanity that he [or she] is
incapable of understanding the charge, indictment or proceedings or of
making his [or her] defense,’ ” it must direct that the defendant be
examined (People v Tortorici, 92 NY2d 757, 765, cert denied 528 US
834). “[T]he decision to order a competency examination . . . lies
within the sound discretion of the trial court” (People v Williams, 35
AD3d 1273, 1274, lv denied 8 NY3d 928). There is no indication in the
record that the court “ ‘receive[d] information which, objectively
considered, should reasonably have raised a doubt about defendant’s
competency and alerted [the court] to the possibility that the
defendant could neither understand the proceedings or appreciate their
significance, nor rationally aid his attorney in his defense’ ” so as
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KA 09-00593
to warrant a competency examination, much less a competency hearing
(People v Arnold, 113 AD2d 101, 103).
We reject the further contention of defendant that he was denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147; People v Tuszynski, 71 AD3d 1407, 1408, lv denied 15 NY3d
810; People v Lewis, 67 AD3d 1396, 1396-1397, lv denied 14 NY3d 772).
Also without merit is defendant’s contention that the court abused its
discretion when it denied defendant’s repeated requests for new
counsel during the trial. “The right of an indigent criminal
defendant to the services of a court-appointed lawyer does not
encompass a right to appointment of successive lawyers at defendant’s
option” (People v Sides, 75 NY2d 822, 824; see People v Kirkland, 177
AD2d 946, 946-947, lv denied 79 NY2d 859). Rather, defendant must
demonstrate good cause for the substitution, “such as a conflict of
interest or other irreconcilable conflict with counsel” (Sides, 75
NY2d at 824; see People v Medina, 44 NY2d 199, 207-208). Prior to
trial, the court twice granted defendant’s request for new counsel.
The court did not abuse its discretion in denying defendant’s mid-
trial requests for the appointment of new trial counsel inasmuch as
defendant failed to demonstrate good cause for the substitution (see
People v Sawyer, 57 NY2d 12, 19, rearg dismissed 57 NY2d 776, cert
denied 459 US 1178).
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court