Opinion
1062 KA 17-01486
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Kenneth B. BARKSDALE, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. KENNETH B. BARKSDALE, DEFENDANT-APPELLANT PRO SE. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
KENNETH B. BARKSDALE, DEFENDANT-APPELLANT PRO SE.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). We affirm.
To the extent that defendant contends in his main brief that the evidence is legally insufficient to support the conviction, that contention is not preserved for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Nonetheless, " ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " raised in his main and pro se supplemental briefs ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "[E]ven assuming, arguendo, that a different verdict would not have been unreasonable, it cannot be said that the jurors failed to give the evidence the weight it should be accorded" ( People v. Albert , 129 A.D.3d 1652, 1653, 12 N.Y.S.3d 462 [4th Dept. 2015], lv denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's contention in his main brief that he was denied effective assistance of counsel. Defendant's claim that defense counsel was ineffective when he did not challenge a prospective juror during jury selection is without merit because defendant " ‘failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e] prospective juror[ ]’ " ( People v. Carpenter , 187 A.D.3d 1556, 1557, 132 N.Y.S.3d 207 [4th Dept. 2020] ; see People v. Maffei , 35 N.Y.3d 264, 265-274, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ; People v. Barboni , 21 N.Y.3d 393, 406-407, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ). Defendant further claims that, as demonstrated by on-the-record disagreements between himself and defense counsel, he was denied effective assistance based on defense counsel's decisions related to calling witnesses and introducing certain evidence. We reject that claim inasmuch as defendant "failed to demonstrate that those alleged errors were not strategic in nature ..., and mere disagreement with trial strategy is insufficient to establish that defense counsel was ineffective" ( People v. Henry , 74 A.D.3d 1860, 1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; see People v. Cole , 179 A.D.3d 1505, 1507, 118 N.Y.S.3d 849 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 29, 149 N.E.3d 867 [2020] ). To the extent that these claims are dependent on matters outside the record on direct appeal, "the appropriate procedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10 motion" ( Maffei , 35 N.Y.3d at 266, 127 N.Y.S.3d 403, 150 N.E.3d 1169 ; see People v. Smith , 145 A.D.3d 1628, 1630, 44 N.Y.S.3d 658 [4th Dept. 2016], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ). Defendant's additional claim that defense counsel did not adequately challenge a search warrant is without merit inasmuch as "[t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success" ( People v. Francis , 63 A.D.3d 1644, 1644, 879 N.Y.S.2d 880 [4th Dept. 2009], lv denied 13 N.Y.3d 835, 890 N.Y.S.2d 451, 918 N.E.2d 966 [2009] [internal quotation marks omitted]; see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Thomas , 176 A.D.3d 1639, 1641, 111 N.Y.S.3d 155 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 166, 139 N.E.3d 824 [2019] ). To the extent that defendant's ineffective assistance claims in his pro se supplemental brief are reviewable on the record before us, we conclude that they are without merit (see generally Caban , 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant also contends in his main brief that County Court erred in granting his midtrial request to proceed pro se prior to summations. We reject that contention. "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" ( People v. McIntyre , 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ; see People v. Crespo , 32 N.Y.3d 176, 178, 88 N.Y.S.3d 120, 112 N.E.3d 1243 [2018], cert denied ––– US ––––, 140 S.Ct 148, 205 L.Ed.2d 47 [2019] ). With respect to the first prong, "[a]lthough the right to represent oneself is ‘severely constricted’ once a trial has begun, an otherwise untimely motion to proceed pro se may still ‘be granted in the trial court's discretion and ... in compelling circumstances’ " ( People v. Hassan , 159 A.D.3d 1390, 1391, 73 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018], quoting McIntyre , 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; see Crespo , 32 N.Y.3d at 184-185, 88 N.Y.S.3d 120, 112 N.E.3d 1243 ; Matter of Kathleen K. [Steven K.] , 17 N.Y.3d 380, 387, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ).
Here, contrary to defendant's assertion, we conclude on this record that the court did not abuse its discretion in considering and granting defendant's request despite its untimeliness (see Hassan , 159 A.D.3d at 1391, 73 N.Y.S.3d 313 ; People v. Dashnaw , 116 A.D.3d 1222, 1231-1232, 983 N.Y.S.2d 681 [3d Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ). Contrary to defendant's further assertion, we conclude that defendant's request "was unequivocal and was not made simply in the alternative to seeking substitute counsel" ( People v. Coffee , 151 A.D.3d 1837, 1838, 58 N.Y.S.3d 777 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; see People v. Paulin , 140 A.D.3d 985, 987, 33 N.Y.S.3d 459 [2d Dept. 2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ; cf. People v. Gillian , 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 [2006] ). Indeed, the record establishes that defendant's request "reflect[ed] a purposeful decision to relinquish the benefit of counsel and proceed singularly" ( Kathleen K. , 17 N.Y.3d at 386, 929 N.Y.S.2d 535, 953 N.E.2d 773 ). Defendant also asserts that his alleged poor performance while proceeding pro se demonstrates that the court erred in granting his request to represent himself. That assertion lacks merit. "Regardless of his lack of expertise and the rashness of his choice, defendant could choose to waive counsel [where, as here, the record reflects that] he did so knowingly and voluntarily" ( People v. Vivenzio , 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 [1984] ; see People v. Malone , 119 A.D.3d 1352, 1355, 989 N.Y.S.2d 218 [4th Dept. 2014], lv denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ). It is well settled that, "even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice with eyes open" ( McIntyre , 36 N.Y.2d at 14, 364 N.Y.S.2d 837, 324 N.E.2d 322 [internal quotation marks omitted]; see Malone , 119 A.D.3d at 1355, 989 N.Y.S.2d 218 ).
We reject defendant's contention in his main brief that he was denied effective assistance of counsel at sentencing. The record establishes that defendant's new counsel, who did not participate in the trial, was assigned for the limited purpose of assisting defendant in challenging his predicate felon status, and defendant raises no challenge to the effectiveness of that assistance. Although defendant's new counsel indicated that he was, as a result of his limited representation, unable to make an argument with respect to the appropriate sentence, defendant, who remained pro se at the sentencing proceeding, was afforded and took advantage of the opportunity to make a statement on his own behalf seeking leniency (see CPL 380.50 [1] ). In any event, given the nature of defendant's criminal record and the criminal conduct herein, we conclude that "no statement made by [new] counsel at sentencing ‘would have had an impact on the sentence imposed’ " ( People v. Saladeen , 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250 [4th Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 [2005] ; see People v. Agee , 129 A.D.3d 1559, 1561, 13 N.Y.S.3d 713 [4th Dept. 2015] ). Likewise, to the extent that defendant contends that he was denied his right to counsel at sentencing, any violation of that right "had no adverse impact, and he is not entitled to the remedy of a remand for resentencing ..., which would serve no useful purpose" ( People v. Rohadfox , 175 A.D.3d 1813, 1815, 109 N.Y.S.3d 537 [4th Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 743, 138 N.E.3d 472 [2019] [internal quotation marks omitted]; see People v. Johnson , 20 N.Y.3d 990, 991, 960 N.Y.S.2d 55, 983 N.E.2d 1239 [2013] ; People v. Adams , 52 A.D.3d 243, 243-244, 859 N.Y.S.2d 170 [1st Dept. 2008], lv denied 11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088 [2008] ).
Contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe. We agree with defendant and the People correctly concede, however, that the uniform sentence and commitment form should be amended to reflect that defendant was sentenced as a second felony drug offender (see People v. Ortega , 175 A.D.3d 1810, 1811, 109 N.Y.S.3d 800 [4th Dept. 2019] ).
Finally, we have reviewed the remaining contentions raised in defendant's pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.