Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent, v. Clemon JONES, Also Known as Clement/Clemont Jones, Defendant–Appellant. (Appeal No. 1.).
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Clemon Jones, Defendant–Appellant Pro Se.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Clemon Jones, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the first degree (§ 170.30). With respect to appeal No. 1, defendant correctly concedes that he failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he made only a general motion for a trial order of dismissal ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The evidence presented at trial, which included recorded conversations between defendant and an undercover officer, supported the jury's rejection of the affirmative defense of entrapment ( see People v. Gordon, 72 A.D.3d 841, 842, 898 N.Y.S.2d 257,lv. denied15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813;People v. White, 272 A.D.2d 872, 872, 708 N.Y.S.2d 215,lv. denied95 N.Y.2d 859, 714 N.Y.S.2d 10, 736 N.E.2d 871).
Defendant failed to preserve for our review his further contention in appeal No. 1 that the police conduct deprived him of due process and, in any event, that contention is without merit ( see People v. Din, 62 A.D.3d 1023, 1024, 879 N.Y.S.2d 577,lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 545, 916 N.E.2d 440). Contrary to the further contention of defendant, County Court did not abuse its discretion in refusing to assign him new counsel. The record establishes that the court made the requisite “ ‘minimal inquiry’ ” into defendant's reasons for requesting new counsel ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283;see People v. Adger, 83 A.D.3d 1590, 1591–1592, 921 N.Y.S.2d 436,lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803), and defendant “ ‘did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]’ ” ( Adger, 83 A.D.3d at 1591, 921 N.Y.S.2d 436;see People v. Ayuso, 80 A.D.3d 708, 708–709, 915 N.Y.S.2d 149,lv. denied16 N.Y.3d 856, 923 N.Y.S.2d 418, 947 N.E.2d 1197). Defendant's problems with defense counsel resulted from “strategic disagreements ... and from an antagonistic attitude on defendant's part,” neither of which requires substitution of counsel ( People v. Sturdevant, 74 A.D.3d 1491, 1494, 904 N.Y.S.2d 777,lv. denied15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904). We note that the court granted defendant's previous request for new counsel, and it is well settled that “ ‘[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option’ ” ( People v. Ward, 27 A.D.3d 1119, 1120, 812 N.Y.S.2d 203,lv. denied7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810,reconsideration denied7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1146, quoting People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233).
Also with respect to appeal No. 1, we reject the contention of defendant in his main and pro se supplemental briefs that he was denied effective assistance of counsel. The record does not support defendant's contention in his main brief that communication issues hindered the defense. Even assuming, arguendo, that defense counsel's prior representation of a codefendant of the confidential informant in an unrelated case constitutes a potential conflict of interest, we conclude that defendant has not demonstrated that “the alleged conflict operated upon his defense in any way” ( People v. Monette, 70 A.D.3d 1186, 1188, 895 N.Y.S.2d 574,lv. denied15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057). Contrary to defendant's contention in his pro se supplemental brief, defense counsel's failure to object to a single allegedly improper remark during the prosecutor's summation does not render him ineffective ( see People v. Ward, 107 A.D.3d 1605, 1607, 966 N.Y.S.2d 805,lv. denied21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152). Rather, “[v]iewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation,” we conclude that defendant was not denied effective assistance of counsel ( People v. Goossens, 92 A.D.3d 1281, 1282, 938 N.Y.S.2d 485,lv. denied19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210;see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant further contends in his main brief that he was deprived of a fair trial by prosecutorial misconduct on summation. Defendant failed to preserve his contention for our review with respect to one of the two challenged remarks inasmuch as he did not object to that remark at trial ( see Ward, 107 A.D.3d at 1606, 966 N.Y.S.2d 805;People v. Foster, 101 A.D.3d 1668, 1670, 956 N.Y.S.2d 753,lv. denied20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532). In any event, we conclude that “[a]ny ‘improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ ” ( People v. Johnson, 303 A.D.2d 967, 968, 759 N.Y.S.2d 260,lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485). As defendant correctly concedes, he likewise failed to preserve for our review his contention that he was improperly shackled during the persistent felony offender hearing ( see People v. Robinson, 49 A.D.3d 1269, 1270, 852 N.Y.S.2d 893,lv. denied10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
The contention of defendant concerning appeal No. 1 in his main and pro se supplemental briefs that he was improperly adjudicated a persistent felony offender was considered and rejected by this Court on defendant's appeal from an order denying his CPL article 440 motion to vacate the sentence imposed upon the underlying judgment of conviction ( People v. Jones, 109 A.D.3d 1108, 1108, 971 N.Y.S.2d 595). Defendant's further contention in his pro se supplemental brief that the persistent felony offender statute is unconstitutional is unpreserved for our review ( see People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 749 N.E.2d 727), and without merit in any event ( see People v. Quinones, 12 N.Y.3d 116, 119, 879 N.Y.S.2d 1, 906 N.E.2d 1033,cert. denied558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31;People v. Coleman, 82 A.D.3d 1593, 1594, 919 N.Y.S.2d 651,lv. denied17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096).
We have reviewed defendant's remaining contentions in his pro se supplemental brief concerning appeal No. 1 and conclude that none warrants reversal or modification.
With respect to appeal No. 2, defendant contends in his main brief that he did not knowingly, voluntarily, or intelligently enter his Alford plea and that the People failed to provide strong evidence of guilt. As defendant correctly concedes, he failed to preserve those contentions for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction ( see People v. Hinkle, 56 A.D.3d 1210, 1210, 867 N.Y.S.2d 312). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 and, in any event, we conclude that the record establishes that defendant's Alford plea was “the product of a voluntary and rational choice,” and that the record “contains strong evidence of actual guilt” ( People v. Dash, 74 A.D.3d 1859, 1860, 902 N.Y.S.2d 490,lv. denied15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [internal quotation marks omitted]; see People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650,lv. denied18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003).
Finally, defendant's contention in appeal No. 2 that the court should have corrected unspecified errors in the presentence report (PSR) or, alternatively, that the court should have conducted a hearing to determine the merits of defendant's allegations concerning the alleged errors is unpreserved for our review inasmuch as he did not request such relief from the court ( see People v. Gibbons, 101 A.D.3d 1615, 1616, 956 N.Y.S.2d 720;see generally CPL 470.05[2] ). Indeed, the record establishes that defense counsel provided the court with certain objections to the PSR and requested that the court append those objections to the PSR. The court agreed to do so, and defense counsel responded that such relief “comports with our request.”
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.