People v. Swaby

179 A.D.2d 793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1992
• Status: Published

Opinion

The defendant contends that the trial court erred when it refused to allow the defendant to substitute retained counsel in place of his assigned counsel, unless substituted counsel was prepared to proceed to trial immediately. The defendant chose to proceed immediately to trial with substituted counsel. The defendant argues that it was error for the court to deny the defense request for a continuance. We disagree.

Although the defendant had ample opportunity to retain counsel of his choice during the 12-month period of time leading up to the trial, the defendant chose to wait until the morning the trial was to begin to request a continuance in order to substitute counsel. "Whether such a continuance should be granted is largely within the discretion of the Trial Judge, and depends upon the particular facts of the case (see, People v Arroyave, 49 NY2d 264, 271)” (People v Dixon, 127 AD2d 785). Given the fact that the defendant chose to wait until the morning of the trial to request the continuance in order to substitute counsel, and given that the defendant had ample opportunity to make such a substitution prior to that point, the Trial Judge did not improvidently exercise his discretion in denying the defendant’s request for a continuance (see, People v Dixon, supra; People v Tineo, 64 NY2d 531).

We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Sullivan, Eiber and Copertino, JJ., concur.