Opinion
699 KA 17-02213
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Jose MOLINA, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, 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 three counts of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ), one count of criminal sale of a controlled substance in the third degree (§ 220.39 [1]), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]). We affirm.
Defendant's contention that the evidence is legally insufficient to support the conviction is unpreserved for our review because defendant's general motion for a trial order of dismissal was not " ‘specifically directed’ at" any alleged shortcoming in the evidence now raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Ford , 148 A.D.3d 1656, 1657, 50 N.Y.S.3d 226 [4th Dept. 2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ). Nevertheless, " ‘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’ " ( 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] ). 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 [2007] ), 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] ).
We reject defendant's contention that Supreme Court abused its discretion in its Sandoval ruling, pursuant to which the prosecutor was permitted to question defendant about his 2009 convictions for, inter alia, assault in the second degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree (see People v. Sandoval , 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). Contrary to defendant's contention, a court's exercise of discretion "should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning" ( People v. Walker , 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ; see People v. Scott , 189 A.D.3d 2062, 2063, 138 N.Y.S.3d 761 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021] ), particularly where, as here, "the basis of the court's decision may be inferred from the parties’ arguments" ( Walker , 83 N.Y.2d at 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 ). Further, we conclude that the convictions were "probative of his credibility inasmuch as such acts showed the ‘willingness ... [of defendant] to place the advancement of his individual self-interest ahead of principle or of the interests of society’ " ( People v. Turner , 197 A.D.3d 997, 999, 153 N.Y.S.3d 366 [4th Dept. 2021], lv denied 37 N.Y.3d 1061, 154 N.Y.S.3d 643, 176 N.E.3d 679 [2021] ; see Sandoval , 34 N.Y.2d at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) and that defendant failed to meet his burden "of demonstrating that the prejudicial effect of the admission of evidence [of those convictions on which the court permitted inquiry] for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion" ( Sandoval , 34 N.Y.2d at 378, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; see People v. Green , 197 A.D.3d 993, 996, 153 N.Y.S.3d 350 [4th Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 696, 181 N.E.3d 1124 [2022] ).
Defendant contends that the court erred in failing to make any inquiry into his request for substitution of counsel. Even assuming, arguendo, that the letter defendant sent to the court amounted to a request for substitution of counsel, we conclude that defendant abandoned any request for substitution of counsel inasmuch as he expressed no further dissatisfaction with defense counsel and made no request for substitution of counsel at trial (see People v. Ocasio , 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803 [4th Dept. 2011], lv denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011], cert denied 565 U.S. 910, 132 S.Ct. 318, 181 L.Ed.2d 196 [2011] ; see also People v. Hobart , 286 A.D.2d 916, 916, 731 N.Y.S.2d 127 [4th Dept. 2001], lv denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001] ).
Finally, the sentence imposed is not unduly harsh or severe.