¶1dissents and votes to reverse in a memorandum. Levine, J. (dissenting). I respectfully dissent. In my view, the majority in this court and the Judge presiding at County Court have confused two separate issues: (1) the discretion of the trial court to deny a request for an adjournment on the eve of trial, based upon an attempted substitution of counsel; and (2) the discretion of the trial court to refuse to permit substitution which is sought irrespective of the denial of any continuance. The case of People v Arroyave (49 NY2d 264), relied upon by both the majority and County Court here, involves the first issue. As stated explicitly in the Court of Appeals opinion: "On this appeal, the sole issue presented for *865our determination is whether the trial court's denial of a motion to grant newly retained counsel an adjournment to enable him to prepare for trial deprived defendant of his constitutionally guaranteed right to be defended at trial by counsel of his own choosing” (id., p 267 [emphasis supplied]). Where the proposed substituted counsel has indicated an absolute unwillingness or total unpreparedness to proceed to immediate trial, the trial court quite properly has a considerable degree of discretion to reject the application during or on the eve of trial, because of the policy favoring the efficient management of court calendars and to avoid last-minute dilatory tactics by the defendant (People v Arroyave, supra, p 273; People v De Chiaro, 48 AD2d 54, 56-57, cert denied 423 US 894; see, United States v Maxey, 498 F2d 474, 478, 482-484). The critical issue under review in this entire line of cases was whether the trial court’s discretionary denial of an adjournment should be upheld.
¶2Contrastingly here, however, defendant’s retained counsel seeking substitution on December 10, 1984, just before jury selection was to begin, not once but twice clearly and unequivocally stated that if ordered to proceed immediately to trial he was prepared to do so: "Mr. Gould: If you recognize me as Mr. Thomas’ attorney and I then make an application for an adjournment and Your Honor denies that application, I will proceed to trial in exactly the same manner as Mr. Conine.” After County Court denied the application for substitution and then denied assigned counsel’s request for an adjournment, the attorney requesting to be substituted repeated: "Mr. Gould: Before you do that, there’s one other matter I would like to place on the record. Since Your Honor stated that and I have stated that, I am ready to proceed as Mr. Conine is with this particular trial, and since Mr. Conine mentioned to you those areas which he feels required in this matter to be adjourned and you’ve ruled on that, again, I will renew my application and tell Your Honor that I will go inside and pick a jury.”
¶3The only equivocation by retained counsel which appears in the record was whether or not, if substituted, he would seek an adjournment. The December 10, 1984 transcript reveals that County Court was attempting to extract a commitment from retained counsel that, if substituted, he would not request an adjournment. However, since retained counsel had clearly and repeatedly stated that he would proceed to immediate trial if substituted and ordered to proceed, and had further represented that he was "as prepared to go forward *866and select a jury and represent my client as [assigned counsel] is as of this particular moment”, the court had no discretion, in effect, to condition approval of substitution on retained counsel’s waiver of any request for a further continuance. It was well within retained counsel’s right, and indeed may have been his duty, to make a record of a formal request for an adjournment under the circumstances, even if he knew of County Court’s intention to deny it. Any concern on the part of the court as to whether substitution of retained counsel may have somehow limited its discretion in forcing the case on for immediate trial could easily have been obviated by holding a brief hearing, at which defendant could have been formally advised on the record that the trial would not be adjourned if substitution was granted and then eliciting from defendant whether he nevertheless wished to proceed with his newly retained attorney.
¶4Since substitution in this case would not have entailed any delay in the trial, County Court’s refusal to permit defendant’s retained attorney to be substituted constituted a denial of defendant’s constitutional right to be defended by counsel of his own choosing (see, People v Walker, 92 AD2d 905; People v Diker, 34 AD2d 798; People v Page, 17 AD2d 782). County Court’s abuse of discretion was further compounded by its refusal even to permit retained counsel to sit in on the trial. Consequently, I would reverse and remit for a new trial.