Opinion
183 KA 18–01176
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Rashad J. MUHAMMAD, Defendant–Appellant.
KATHRYN B. FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
KATHRYN B. FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, 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 two counts of predatory sexual assault against a child ( Penal Law § 130.96 ) and rape in the second degree (§ 130.30[1] ). Defendant contends that County Court erred in refusing to suppress the DNA evidence because the police interview during which defendant agreed to provide a DNA sample was coercive and the police officers failed to advise defendant that he had the right to refuse to provide that sample. We reject that contention. Even though one of the police officers lied and used some deceptive methods in questioning defendant, " ‘the deception was not so fundamentally unfair as to deny due process ... [and] was not so extensive as to ... overcome [ ] defendant's will’ " ( People v. Henry, 173 A.D.3d 1470, 1478, 103 N.Y.S.3d 656 (3d Dept. 2019), lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 699, 133 N.E.3d 399 (2019) ; see People v. Andrus, 77 A.D.3d 1283, 1284, 908 N.Y.S.2d 498 (4th Dept. 2010), lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 (2011) ). Moreover, although the police officers did not advise defendant of his right to refuse consent to providing a DNA sample, that fact " ‘does not, by itself, negate the consent otherwise freely given’ " ( People v. Osborne, 88 A.D.3d 1284, 1285, 930 N.Y.S.2d 367 (4th Dept. 2011), lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922 (2012), reconsideration denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 (2012) ; see People v. Parker, 133 A.D.3d 1300, 1301, 20 N.Y.S.3d 781 (4th Dept. 2015), lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 (2016), reconsideration denied 28 N.Y.3d 1030, 45 N.Y.S.3d 381, 68 N.E.3d 110 (2016) ). Further, the record establishes that, in response to defendant's question, one of the officers admitted to defendant that they did not have court papers requiring defendant to provide a DNA sample, but defendant nevertheless consented to the taking of a sample. We conclude that the totality of the circumstances demonstrates that defendant's consent was voluntary and not the product of coercion (see People v. Graham, 153 A.D.3d 1634, 1635, 62 N.Y.S.3d 665 (4th Dept. 2017), lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 (2017) ; see also People v. Jemes, 132 A.D.3d 1361, 1362, 17 N.Y.S.3d 539 (4th Dept. 2015), lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 (2016) ; People v. Dail, 69 A.D.3d 873, 874, 894 N.Y.S.2d 78 (2d Dept. 2010), lv denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 (2010) ).
We also reject defendant's contention that the court erred in denying his requests for new counsel. The court made extensive inquiries into defendant's requests, but defendant failed to show good cause for substitution inasmuch as his complaints were not "serious complaints about counsel" ( People v. Jones, 149 A.D.3d 1576, 1577, 52 N.Y.S.3d 804 (4th Dept. 2017), lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 (2017) [internal quotation marks omitted]; see generally People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 (2010) ). Rather, defendant's complaints were disagreements over strategy, which are not sufficient grounds for substitution (see People v. Bradford, 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727 (4th Dept. 2014), lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 (2014) ; People v. Welch, 2 A.D.3d 1354, 1355, 770 N.Y.S.2d 230 (4th Dept. 2003), lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 (2004) ).