Opinion
56 KA 18-01541
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Dawud ABDULLAH, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, 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 criminal possession of a weapon in the third degree ( Penal Law § 265.02 [1] ), harassment in the second degree (§ 240.26 [1]), and criminal contempt in the second degree (§ 215.50 [3]). We affirm.
Initially, we reject defendant's contention that County Court erred in failing to conduct a sufficient inquiry into his request to represent himself at trial. "[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel ... To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision" ( People v. Stone , 22 N.Y.3d 520, 525, 983 N.Y.S.2d 454, 6 N.E.3d 572 [2014] ). In other words, a "searching inquiry" is required to "warn defendant of the risks inherent in representing himself [or herself]" and to "apprise him [or her] of the value of counsel" ( People v. Kaltenbach , 60 N.Y.2d 797, 799, 469 N.Y.S.2d 685, 457 N.E.2d 791 [1983] [internal quotation marks omitted]; see People v. Crampe , 17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011], cert denied 565 U.S. 1261, 132 S.Ct. 1746, 182 L.Ed.2d 531 [2012] ).
Here, upon our review of "the whole record, not simply ... [the] waiver colloquy" ( People v. Providence , 2 N.Y.3d 579, 581, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] ), we conclude that defendant made a knowing, voluntary and intelligent waiver of his right to counsel. The court conducted the requisite searching inquiry, during which defendant stated that he had been through a jury trial in a prior case and had a level of familiarity with criminal trials. Defendant also repeatedly expressed dissatisfaction with defense counsel. The court " ‘had numerous opportunities to see and hear ... defendant firsthand, and, thus, had general knowledge of defendant's age, literacy and familiarity with the criminal justice system’ " ( People v. Chandler , 109 A.D.3d 1202, 1203, 971 N.Y.S.2d 778 [4th Dept. 2013], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014] ; see People v. Anderson , 94 A.D.3d 1010, 1012, 942 N.Y.S.2d 561 [2d Dept. 2012], lv denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). Additionally, the court fulfilled its obligation to ensure that defendant was " ‘aware of the dangers and disadvantages of self-representation’ " ( Providence , 2 N.Y.3d at 582, 780 N.Y.S.2d 552, 813 N.E.2d 632 ; see Chandler , 109 A.D.3d at 1203, 971 N.Y.S.2d 778 ).
Defendant further contends that the jury instruction improperly changed the theory of the prosecution as charged in the indictment and narrowed by the bill of particulars, and subjected him to prosecution for an uncharged offense. That contention is not preserved for our review (see People v. Hursh , 191 A.D.3d 1453, 1454, 138 N.Y.S.3d 437 [4th Dept. 2021] ; People v. Lynch , 191 A.D.3d 1476, 1477, 138 N.Y.S.3d 429 [4th Dept. 2021] ; see generally People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the third degree 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 also reject defendant's contention that the verdict convicting him of that crime is against the weight of the evidence with respect to the element of possession of a dangerous instrument (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The victim testified at trial that defendant arrived at her apartment with a wine bottle, which he used to attack her. "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" ( People v. Streeter , 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] [internal quotation marks omitted]), and we perceive no basis to disturb its determination. The victim's testimony with respect to the wine bottle was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory," and therefore was not incredible as a matter of law ( People v. Barnes , 158 A.D.3d 1072, 1073, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] [internal quotation marks omitted]; see People v. Smith , 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ).
Additionally, although the wine bottle was never recovered, that fact does not render the verdict against the weight of the evidence (see People v. Cohens , 81 A.D.3d 1442, 1444, 917 N.Y.S.2d 492 [4th Dept. 2011], lv denied 16 N.Y.3d 894, 926 N.Y.S.2d 29, 949 N.E.2d 977 [2011] ). Further, although in performing a weight of the evidence review we may consider the jury's verdict on other counts (see People v. Rayam , 94 N.Y.2d 557, 563 n. *, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ), we conclude that defendant's acquittal of an assault charge does not warrant a different conclusion with respect to the weapon possession charge (see generally People v. Freeman , 298 A.D.2d 311, 311-312, 749 N.Y.S.2d 231 [1st Dept. 2002], lv denied 99 N.Y.2d 582, 755 N.Y.S.2d 717, 785 N.E.2d 739 [2003] ). To the extent defendant contends that the evidence was legally insufficient to support the criminal possession of a weapon in the third degree conviction due to his acquittal of assault in the second degree, we conclude that his "masked repugnancy argument" is unpreserved because he did not raise it prior to the jury's discharge ( People v. Smith , 197 A.D.2d 373, 373, 602 N.Y.S.2d 367 [1st Dept. 1993], lv denied 82 N.Y.2d 903, 610 N.Y.S.2d 170, 632 N.E.2d 480 [1993] [internal quotation marks omitted]).
Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.