GOOSSENS, CARL, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
817
KA 09-01853
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CARL GOOSSENS, DEFENDANT-APPELLANT.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
RONALD A. CICORIA, ACTING DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered April 22, 2008. The judgment convicted
defendant, upon a jury verdict, of endangering the welfare of a child
(two counts) and unlawfully dealing with a child in the first degree
(two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts each of endangering the welfare
of a child (Penal Law § 260.10 [1]), and unlawfully dealing with a
child in the first degree (§ 260.20 [2]). Contrary to defendant’s
contention, County Court properly exercised its discretion in denying
his motion for new assigned counsel on the morning of the commencement
of trial inasmuch as there was no showing of good cause for
substitution of counsel (see People v Porto, 16 NY3d 93, 100; People v
Linares, 2 NY3d 507, 511; People v Singletary, 63 AD3d 1654, lv denied
13 NY3d 839). Defendant’s oral request raised the same concerns
raised by defendant in a prior motion for new assigned counsel, i.e.,
that defense counsel recommended that he accept a plea offer and that
defense counsel would not provide meaningful representation at trial.
That prior motion had been granted by the court with respect to the
first attorney assigned in the case.
“In determining whether good cause exists, a trial court must
consider the timing of the defendant’s request, its effect on the
progress of the case and whether present counsel will likely provide
the defendant with meaningful assistance” (Linares, 2 NY3d at 510).
The record establishes that there was no good cause for substitution
of counsel here. Defendant had made similar requests for new assigned
counsel both in this matter and in others of which the court was
aware; the trial would be delayed if the request was granted; defense
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KA 09-01853
counsel had actively participated in conferences and a pretrial
hearing and set forth his efforts to prepare a defense for trial; and,
“[t]o the extent defendant’s relationship with counsel soured with the
approach of trial, the fault lies wholly with defendant” (id. at 511).
In addition, although defense counsel initially stated that the
attorney/client relationship was irretrievably broken based upon
defendant’s request for new counsel and the difficulty he had in
communicating with defendant, upon further “diligent and thorough”
inquiry by the court, counsel implicitly stated that he would provide
meaningful representation at trial (id.; cf. People v Sides, 75 NY2d
822, 824-825). “Substitution of counsel is an instrument designed to
remedy meaningful impairments to effective representation, not to
reward truculence with delay” (Linares, 2 NY3d at 512).
Entered: June 29, 2012 Frances E. Cafarell
Clerk of the Court