Opinion
2013-10-17
The PEOPLE of the State of New York, Respondent, v. Michael GONZALEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP (US), New York (Michael P. McMahan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP (US), New York (Michael P. McMahan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
TOM, J.P., SWEENY, MANZANET–DANIELS, FEINMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J. at request for new counsel; Patricia M. Nunez, J. at jury trial and sentencing), rendered April 26, 2012, as amended April 30, 2012, convicting defendant of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/2 to 7 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The element of forcible taking was established by evidence that defendant overpowered the elderly victim, held him down on a couch, and held his hand over the victim's mouth, and that defendant thereby compelled the victim to give up his money.
Since there was no request to charge petit larceny as a lesser included offense, “the court's failure to submit such offense does not constitute error” (CPL 300.50[2] ). In any event, there was no reasonable view of the evidence, viewed most favorably to defendant, that he took the victim's money without permission, but nevertheless did so without using force ( see e.g. People v. Tucker, 41 A.D.3d 210, 839 N.Y.S.2d 15 [1st Dept.2007], lv. denied9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007],cert. denied552 U.S. 1153, 128 S.Ct. 1094, 169 L.Ed.2d 829 [2008] ). Similarly, counsel's failure to request this charge did not deprive defendant of effective assistance under the state and federal standards ( see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Regardless of whether counsel should have made the request, defendant has not shown a reasonable probability that the charge would have been granted or that, if granted, it would have affected the outcome.
The calendar court properly exercised its discretion when it denied defendant's request for appointment of new counsel. Contrary to defendant's contention, the record reflects that the court provided defendant an adequate opportunity to state his reasons for substitution ( compare People v. Hansen, 37 A.D.3d 318, 830 N.Y.S.2d 536 [1st Dept.2007], with People v. Bryan, 31 A.D.3d 295, 818 N.Y.S.2d 217 [2006] ). The court asked defendant what he wished to say, considered defendant's stated reasons for requesting new counsel, and correctly rejected them.
Defendant did not preserve his claim that he was deprived of a fair trial by the trial court's questioning of the victim, and we decline to review it in the interest of justice. As an alternative holding, we find that the court acted reasonably when it asked a few clarifying questions ( see People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978] ), and that it did not take on “either the function or appearance of an advocate” ( People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ).
We perceive no basis for reducing the sentence.