People v. Walker

92 A.D.2d 905, 460 N.Y.S.2d 101, 1983 N.Y. App. Div. LEXIS 17301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1983
• Status: Published

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Westchester County (McMahon, J.), rendered October 29,1981, convicting him of three counts of robbery in the first degree, upon his guilty pleas, and imposing sentences. Judgment modified, on the law, by vacating the sentences. As so modified, judgment affirmed and case remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith. Defendant pleaded guilty to three counts of robbery in the first degree. On the date set for sentencing, the court stated that it was necessary to postpone sentencing so that a predicate felony hearing could take place and a presentence report could be prepared. The defense at that time moved for a substitution of defense counsel. Notwithstanding the fact that the prospective defense counsel was present in court and that an adjournment was necessary anyway, the court denied the request for substitution. In general, a defendant has a fundamental right to be represented by counsel of his own choosing (People v Arroyave, 49 NY2d 264), and there is no indication that the substitution of counsel here would have resulted in a further delay. Accordingly, the denial of the motion improperly deprived defendant of his right to counsel of his choice. As a result, a new predicate felony hearing and the reimposition of sentence is necessary. Damiani, J. P., Titone, Mangano and Gulotta, JJ., concur.