Opinion
1048 KA 18-02057
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Charles THOMAS, Jr., Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND OGDEN, 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 criminal sexual act in the third degree ( Penal Law § 130.40 [2] ) and one count of rape in the third degree (§ 130.25 [2]). We affirm.
We reject defendant's contention that Supreme Court's Sandoval ruling constituted an abuse of discretion (see generally 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, "an exercise of a trial court's Sandoval 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 on which the court permitted inquiry were "probative of [defendant's] 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] 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] ). Contrary to defendant's further contention, the fact that defendant was the only possible witness for the defense concerning certain allegations "increased the importance of his credibility and his testimony," and did not require the court to prohibit any inquiry into his past convictions ( People v. McLaurin , 33 A.D.3d 819, 820, 826 N.Y.S.2d 279 [2d Dept. 2006], lv denied 7 N.Y.3d 927, 827 N.Y.S.2d 696, 860 N.E.2d 998 [2006] ). In any event, we conclude that any error is harmless (see generally People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant failed to preserve for our review his further contention that he was denied a fair trial based upon the cumulative effect of alleged improper comments made by the prosecutor during summation (see generally People v. Britt , 34 N.Y.3d 607, 616, 122 N.Y.S.3d 570, 145 N.E.3d 207 [2019] ; People v. Shire , 77 A.D.3d 1358, 1359, 908 N.Y.S.2d 305 [4th Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Additionally, defendant contends that he was deprived of effective assistance of counsel because defense counsel, in response to defendant's pro se requests for assignment of new counsel, took an adverse position to him by disputing certain of his factual allegations, thereby creating a conflict of interest and undermining his credibility. We reject that contention. "Although an attorney is not obligated to comment on a client's pro se motions or arguments, he [or she] may address allegations of ineffectiveness [raised on a motion for substitution of counsel] ‘when asked to by the court’ and ‘should be afforded the opportunity to explain his [or her] performance’ " ( People v. Washington , 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015] ). Still, even though "defense counsel need not support a defendant's pro se motion for the assignment of new counsel, a defendant is denied the right to [effective, conflict-free] counsel when defense counsel becomes a witness against the defendant by taking a position adverse to the defendant in the context of such a motion" ( People v. Fudge , 104 A.D.3d 1169, 1170, 960 N.Y.S.2d 792 [4th Dept. 2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ; see People v. Burney , 204 A.D.3d 1473, 1475, 166 N.Y.S.3d 798 [4th Dept. 2022] ). Defense counsel "takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit" ( Washington , 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; see People v. Mitchell , 21 N.Y.3d 964, 966-967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ). Here, we conclude that defense counsel did not take a position adverse to defendant on his requests for substitute counsel because, during the relevant colloquy, he merely denied defendant's open-court allegations against him and briefly outlined his efforts in representing defendant (see Washington , 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; People v. Nelson , 7 N.Y.3d 883, 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006] ; Burney , 204 A.D.3d at 1475, 166 N.Y.S.3d 798 ).
We conclude that the sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions, and conclude that they lack merit.