Opinion
927 KA 19-01993
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Gary S. LOBES, Defendant-Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND DEJOSEPH, 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, assault in the second degree ( Penal Law § 120.05 [2] ), attempted assault in the second degree ( §§ 110.00, 120.05 [1] ), and assault in the third degree (§ 120.00 [1]) stemming from his conduct in assaulting his girlfriend on two different dates. We reject defendant's contention that he was denied the right to be present at all material stages of trial due to his absence from sidebar conferences with prospective jurors. A presumption of regularity attaches to judicial proceedings, and that presumption may be overcome only by substantial evidence to the contrary (see People v. Velasquez , 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ; People v. Schilling , 185 A.D.3d 1433, 1434, 128 N.Y.S.3d 127 [4th Dept. 2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 291, 155 N.E.3d 784 [2020] ). "Without more, failure to record a defendant's presence is insufficient to meet defendant's burden of rebutting the presumption of regularity" ( Velasquez , 1 N.Y.3d at 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 ). Inasmuch as the record does not indicate that defendant was absent from the sidebar conferences, we conclude that defendant failed to overcome the presumption of regularity with substantial evidence of his absence from those sidebar conferences (see Schilling , 185 A.D.3d at 1434, 128 N.Y.S.3d 127 ).
Defendant failed to preserve for our review his contention that certain counts of the indictment were rendered duplicitous by the victim's testimony at trial (see People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Rath , 192 A.D.3d 1600, 1602, 145 N.Y.S.3d 255 [4th Dept. 2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 514, 170 N.E.3d 388 [2021] ; People v. Zeman , 156 A.D.3d 1460, 1461, 65 N.Y.S.3d 827 [4th Dept. 2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 666, 102 N.E.3d 443 [2018] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see Rath , 192 A.D.3d at 1602, 145 N.Y.S.3d 255 ; Zeman , 156 A.D.3d at 1461, 65 N.Y.S.3d 827 ).
We reject defendant's contention that he received ineffective assistance of counsel. Although defense counsel's representation was not perfect, viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Finally, the sentence is not unduly harsh or severe.