CORREA, YADIEL, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1270
KA 14-01607
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
YADIEL CORREA, DEFENDANT-APPELLANT.
ROBERT A. DINIERI, CLYDE, FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered March 27, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree, criminal sale of a
controlled substance in the third degree (two counts), and conspiracy
in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and conspiracy
in the fourth degree (§ 105.10 [1]), defendant contends that County
Court erred in denying his request for a substitution of counsel. It
is well settled that “[t]he decision to allow a defendant to
substitute counsel is largely within the discretion of the court to
which the application is made” (People v Jackson, 85 AD3d 1697, 1699,
lv denied 17 NY3d 817 [internal quotation marks omitted]; see People v
Stevenson, 36 AD3d 634, 634, lv denied 8 NY3d 927), and here, we
conclude that the court did not abuse its discretion in denying
defendant’s request.
Contrary to defendant’s contention, the court did not err in
denying the request for substitution without making further inquiry
into the reasons for the request. A “court’s duty to consider such a
motion is invoked only where a defendant makes a ‘seemingly serious
request[ ]’ . . . Therefore, it is incumbent upon a defendant to make
specific factual allegations of ‘serious complaints about counsel’ ”
in support of his or her motion (People v Porto, 16 NY3d 93, 99-100).
Here, to the contrary, “[f]urther inquiry was not required because
[defendant’]s conclusory assertions did not suggest the serious
possibility of a genuine conflict of interest” (Stevenson, 36 AD3d at
-2- 1270
KA 14-01607
635; see People v Lewicki, 118 AD3d 1328, 1329, lv denied 23 NY3d
1064; People v Boswell, 117 AD3d 1493, 1494, lv denied 23 NY3d 1060).
In any event, defendant abandoned his request when he “ ‘decid[ed] . .
. to plead guilty while still being represented by the same
attorney’ ” (People v Guantero, 100 AD3d 1386, 1387, lv denied 21 NY3d
1004; see Boswell, 117 AD3d at 1494; see also People v Ocasio, 81 AD3d
1469, 1470, lv denied 16 NY3d 898, cert denied ___ US ___, 132 S Ct
318).
Finally, we note that the certificate of conviction contains a
typographical error inasmuch as it incorrectly reflects that defendant
was sentenced to an indeterminate term of imprisonment of 1 to 3 years
on the conspiracy count, whereas the parties agree, and the sentencing
minutes reflect, that he was sentenced to 1½ to 3 years on that count.
The certificate of conviction therefore must be amended to correct
that error (see generally People v Kemp, 112 AD3d 1376, 1377; People v
Smoke, 43 AD3d 1332, 1333, lv denied 9 NY3d 1039).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court