dissent">Sandler, J. (dissenting).

On defendant’s appeal from his conviction following a jury trial of two counts of criminal sale of controlled substances in the first degree and concurrent sentences of 15 years to life, the central issue is whether or not the defendant was denied his constitutional right to counsel of his own choosing. The relevant portions of the record strongly support the conclusion that this constitutional right was in fact violated. However, certain facts critical to this question are not developed in the record with sufficient clarity to permit a final determination at this time.

Accordingly, I believe the appeal should be held in abeyance pending a hearing in the trial court to develop more completely the relevant circumstances.

Defendant was arrested on September 9, 1974 following his indictment by the Grand Jury. On September 11, 1974, he was assigned an article 18-B panel attorney. Some two months later in November of 1974, the defendant requested the court to assign another attorney to him. The request was denied. This was followed by a series of similar requests by the defendant which were unquestionably a source of annoyance to various Trial Judges who were persuaded, correctly in my view, that his dissatisfaction with his assigned attorney was not reasonable.

The principle is, of course, well established that a defendant, not able to retain his own counsel, may not dictate the attorney to be assigned to him. Although I think it often prudent to permit a defendant dissatisfied with his first assigned counsel an opportunity to see how he gets along with another, I find nothing in the judicial response to these applications of any present concern. The principal significance for the issue before the court is that the defendant’s varying applications, and the manner in which he pursued them, *135unquestionably gave rise to a sense that he was a troublesome individual, which reaction was strengthened by his later application to be permitted to try the case pro se.

A time came when a jury panel was assembled for preliminary instructions preparatory to the selection of the jury. The date of this event is unclear. The transcript indicates that it occurred on October 3, 1975, but other information suggests that the true date was September 23, 1975.

In any event, the transcript discloses the appearance in court of Mr. Frank Bress, a lawyer with the New York University Criminal Law Clinic, who informed the trial court that in the beginning of April the defendant had written a letter to him "seeking my assistance in his defense. I wrote a letter to him dated April 10, in which I advised him if he gave me a bit more information about his case; adjourned date and brief description of the case, that I would investigate the situation and probably represent him.”

Bress went on to say that he had learned that the letter written by him to the defendant had been withheld by the Department of Corrections until "September 19, four days ago” when it was given to the defendant who immediately wrote a letter describing the situation. Bress said he received the letter that very morning, determined where the case was, and "I am here to tell the court I will appear as counsel for the defendant.” He stated that the defendant had discussed the situation with him that morning and told him of his "dissatisfaction with assigned counsel.”

The court commented that he would not interrupt the trial "which has already commenced to permit you to make an application for any kind of adjournment,” to which Bress responded that he understood that the trial was only at the stage of preliminary instructions.

The colloquy was concluded with the following exchange:

"The Court: I will substitute you right now in Mr. Albert’s place and you can sit there and proceed with the selection of the jury.

"Mr. Bress: I think you are aware that would probably be less than good representation than he already has.

"The Court: What is your application?

"Mr. Bress: My application is for a delay of the trial to allow me sufficient time to prepare myself to try it.

"The Court: Your application is denied.”

*136If, as seems likely, although not stated explicitly, the defendant in his conversation with Bress that morning had asked Bress to represent him, and the attorney had agreed to do so, subject only to the opportunity for a reasonable period to prepare the case, the court’s refusal of any adjournment whatever would seem to me a clear violation of the defendant’s right to counsel of his own choice. (Cf. People v McLaughlin, 291 NY 480, 482-483; People v Gordon, 262 App Div 534; People v Faracey, 46 Misc 2d 46.) No inquiry was made by the court as to how much time Mr. Bress would require for preparation. Nor was the defendant asked if he wished to retain Mr. Bress. The denial of any adjournment under the circumstances to an incarcerated defendant charged with an A-l felony would have been justifiable only if a compelling factual basis existed for the conclusion that the appearance of Mr. Bress was merely a ploy by the defendant to delay or disrupt the trial. Nothing was developed in the course of the colloquy that morning that would remotely justify such a conclusion.

Moreover, the court had been informed that the defendant’s efforts to secure counsel of his own choosing had been interfered with by the Department of Corrections which had withheld, for a period of some six months, a letter from Mr. Bress to the defendant relating to his representation of the defendant. The very fact that the defendant had sought to retain Bress some six months prior to the date the jury panel had been assembled refutes any contention that this was a last minute effort at delay. Indeed, the interference by a government department with the defendant’s effort to secure counsel, if it in fact occurred, would by itself justify the conclusion that his right to counsel of his own choosing had been infringed.

It may be that the trial court was under the impression, because the attorney was associated with a "criminal law clinic,” that the defendant was somehow seeking to circumvent prior judicial rulings by selecting his own "assigned” counsel. If so, the court would have been acting under a misunderstanding. The defendant had as much right to "retain” Mr. Bress as he would have had to "retain” any lawyer to whom he was in a position to pay a fee.

The fact that some days later the defendant indicated his willingness to be represented by originally assigned counsel does not alter the conclusión, suggested by the facts outlined *137above, that he was effectively denied the right to counsel of his own choice.

What is clearly required is an evidentiary hearing to determine essentially two issues:

First, did the defendant retain Mr. Bress and did Mr. Bress agree to represent him subject only to the opportunity for a reasonable adjournment to prepare the case.

Second, if that in fact occurred, was the court justified under all the circumstances, including the apparent obstruction by the Department of Corrections of the defendant’s efforts to secure counsel, in denying any adjournment whatever to newly retained counsel.

This appeal should be held in abeyance pending such a hearing.

Lupiano, J. P., Birns and Markewich, JJ., concur with Fein, J.; Sandler, J., dissents in an opinion.

Judgment, Supreme Court, New York County, rendered on December 12, 1975, affirmed.

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