Opinion
5 KA 12-01720
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Jeffrey J. TERBORG, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, unauthorized use of a vehicle in the second degree ( Penal Law § 165.06 ), defendant contends, as he did in two prior appeals, that Supreme Court (Doyle, J.) erred in disqualifying the Public Defender's Office from representing him. We reject that contention, as we did in the prior appeals ( People v. Terborg , 162 A.D.3d 1468, 1468-1469, 78 N.Y.S.3d 823 [4th Dept. 2018], lv denied 32 N.Y.3d 1008, 86 N.Y.S.3d 767, 111 N.E.3d 1123 [2018], lv dismissed 32 N.Y.3d 1178, 97 N.Y.S.3d 612, 121 N.E.3d 240 [2019] ; People v. Terborg , 156 A.D.3d 1320, 1320, 67 N.Y.S.3d 730 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ). To the extent that defendant also challenges a subsequent ruling of the court (Renzi, J.) adhering to the initial disqualification ruling, we conclude, as we did in the more recent prior appeal ( Terborg , 162 A.D.3d at 1468, 78 N.Y.S.3d 823 ), that the subsequent ruling was not an abuse of discretion (see People v. Beauchamp , 84 A.D.3d 507, 508, 923 N.Y.S.2d 70 [1st Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ; see generally People v. Evans , 94 N.Y.2d 499, 506, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000], rearg denied 96 N.Y.2d 755, 725 N.Y.S.2d 280, 748 N.E.2d 1076 [2001] ).
Defendant further contends that the court erred in conducting a second felony offender hearing without notice to him. Contrary to defendant's contention, the court conducted a hearing on notice to defendant, and he was given an opportunity to be heard. Even assuming, arguendo, that defendant correctly contends that he did not receive a copy of the second felony offender statement (see CPL 400.21 [2], [3], [6] ), we conclude that the record establishes that he received notice of the second felony offender allegations more than two days before the hearing and that, under the circumstances of this case, any technical failure to comply with the procedure set out in CPL 400.21 "was harmless, and [remitting] for filing and resentencing would be futile and pointless" ( People v. Bouyea , 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985] ; see People v. Harris , 61 N.Y.2d 9, 20, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ; see also People v. Brown , 74 A.D.3d 1637, 1638, 905 N.Y.S.2d 673 [3d Dept. 2010], lv denied 15 N.Y.3d 850, 909 N.Y.S.2d 27, 935 N.E.2d 819 [2010] ).
Defendant also contends that the conviction is not supported by legally sufficient evidence because the People failed to prove that he knew he was operating the vehicle without permission. We reject that contention. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is a valid line of reasoning and permissible inferences from which a rational factfinder could have found that defendant knew that he was operating the vehicle without the permission of the owner (see People v. Waterford , 124 A.D.3d 1246, 1246-1247, 999 N.Y.S.2d 630 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 609, 40 N.E.3d 587 [2015] ; People v. Darrisaw , 70 A.D.3d 1387, 1387-1388, 894 N.Y.S.2d 789 [4th Dept. 2010], lv denied 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 [2010] ; see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel due to defense counsel's failure to request that the court either not instruct the jury on the statutory presumption in Penal Law § 165.05 or instruct the jury that the presumption is permissive and not mandatory. It is well settled that the "failure to ‘make a motion or argument that has little or no chance of success’ " does not constitute a denial of effective assistance of counsel ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Here, the court's instructions to the jury followed the statutory definition of the offense in question (see Penal Law § 165.06 ; see also § 165.05 ) and mirrored the pattern Criminal Jury Instructions (see CJI2d[NY] Penal Law § 165.06 ). The court also properly instructed the jury that the presumption is permissive and not mandatory (see People v. Thompkins , 133 A.D.3d 899, 900, 20 N.Y.S.3d 188 [3d Dept. 2015] ; see generally People v. Bombard , 187 A.D.3d 1417, 1420, 133 N.Y.S.3d 669 [3d Dept. 2020] ).