PEOPLE, res, v. CESAR ZUNIGA, def-ap

3846. PEOPLE, res, v. CESAR ZUNIGA, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia B. Heeger of counsel), and Zuckerman Spaeder LLP, New York (Anant Kumar of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for res — Judgment, Supreme Court, New York County (Renee A. White, J. at nonjury trial and sentencing; Melissa C. Jackson, J. at reconstruction hearing), rendered October 13, 2010, convicting defendant of predatory sexual assault against a child, and sentencing him to a term of 15 years to life, unanimously affirmed.

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3846. PEOPLE, res, v. CESAR ZUNIGA, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia B. Heeger of counsel), and Zuckerman Spaeder LLP, New York (Anant Kumar of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for res — Judgment, Supreme Court, New York County (Renee A. White, J. at nonjury trial and sentencing; Melissa C. Jackson, J. at reconstruction hearing), rendered October 13, 2010, convicting defendant of predatory sexual assault against a child, and sentencing him to a term of 15 years to life, unanimously affirmed.

After an inquiry that was sufficient under the circumstances, the court providently exercised its discretion in denying defendant’s eve-of-trial request to substitute counsel. Contrary to defendant’s argument, the fact that the attorney was retained is relevant, because “[t]he remedy available to a defendant who is dissatisfied with his retained counsel is to discharge that attorney and hire another” (People v. Wilburn, 40 AD3d 508, 509 [1st Dept 2007], lv denied 9 NY3d 883 [2007]), using refunded unearned fees where applicable (see People v. Wall, 56 AD3d 361 [1st Dept 2008], lv denied 12 NY3d 763 [2009]). While defendant said he wanted a new attorney, he did not tell the court he was seeking to hire new counsel, that he was in a position to do so without undue delay (see People v. Arroyave, 49 NY2d 264, 271 [1980]), or that he needed or wanted assigned counsel. In any event, the court permitted defendant to voice his complaints against the attorney, and there was no basis for substitution of counsel or for further inquiry (see People v. Porto, 16 NY3d 93, 99-100 [2010]; People v. Linares, 2 NY3d 507, 511 [2004]). Moreover, the timing and circumstances of defendant’s complaint strongly suggest that it was a delaying tactic (see People v. Medina, 44 NY2d 199, 206 [1978]).

PEOPLE, res, v. CESAR ZUNIGA, def-ap

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