382 A.2d 1107
No. 7813Supreme Court of New Hampshire Strafford
Decided February 17, 1978
Criminal Law — Post-Conviction Relief — Right to Counsel of Choice Where defendant, who was indicted for aggravated assault, stated at trial that he had no money and could not afford lawyer, and court properly appointed lawyer who tried case which resulted in guilty verdict, and defendant later contended that out-of-state lawyer was his counsel of choice, trial court properly denied defendant’s motion for new trial on ground he was denied right to counsel of his choice, since defendant could not now assert error based on inconsistent position.
David H. Souter, attorney general (Edward N. Damon, assistant attorney general, orally), for the State.
Fitzgerald Sessler, of Laconia (Paul T. Fitzgerald orally), for the defendant.
MEMORANDUM OPINION
Defendant was indicted for aggravated assault in violation of RSA 631:2. When the case was called for trial, defendant stated that he had no money and could not afford a lawyer. The court therefore appointed a lawyer who tried the case, which resulted in a guilty verdict. At sentencing, defendant stated he was “a little disappointed . . . in my lawyer from Massachusetts not being here, although counsel, I think he did a marvelous job today in this case. . . .”
Page 103
He contended that a lawyer named Mavros from Massachusetts was counsel of his choice but that he failed to appear. Mavros represented defendant through the preliminary stages in the Rochester District Court, but the records of the superior court do not contain an appearance by him for defendant in that court.
After verdict, defendant filed a motion for a new trial on the ground that he was denied the right to counsel of his choice. This motion was denied by Cann, J., who transferred defendant’s exception.
When defendant stated that he had no money and could not afford a lawyer, it was proper for the court to appoint counsel for him. Defendant cannot now assert error on the part of the court based on an inconsistent position. See State v. Laplante, 117 N.H. 417, 374 A.2d 643 (1977). The record before us does not compel a different result from that reached by the trial court.
Exception overruled.