Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. Ricky BENNETT, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of arson in the third degree (Penal Law § 150.10 [1] ) and attempted arson in the third degree (§§ 110.00, 150.10[1] ). We reject defendant's contention that Supreme Court erred in admitting in evidence a tape-recorded conversation between defendant and his former fiance. Contrary to defendant's contention, the People laid a proper foundation for the admission in evidence of that recording ( see People v. Hurlbert, 81 A.D.3d 1430, 1431, 916 N.Y.S.2d 713, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979; see generally People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88), and the court did not abuse its discretion in concluding that the recording was sufficiently audible to warrant its admission in evidence ( see People v. Cleveland, 273 A.D.2d 787, 788, 709 N.Y.S.2d 751, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366). Defendant's further contention that the court erred in admitting in evidence the recording of a jailhouse telephone call between defendant and his girlfriend is not preserved for our review ( see generally People v. Jacquin, 71 N.Y.2d 825, 826–827, 527 N.Y.S.2d 728, 522 N.E.2d 1026), 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] ).
We reject the contention of defendant “that the court failed to make an appropriate inquiry into his complaints concerning defense counsel and in response to his request for substitution of counsel. Defendant ‘did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]’ ” ( People v. Adger, 83 A.D.3d 1590, 1591, 921 N.Y.S.2d 436, lv. denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803; see generally People v. Moore, 41 A.D.3d 1149, 1150–1151, 837 N.Y.S.2d 480, lv. denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758). In any event, inasmuch as defendant did not subsequently express dissatisfaction with defense counsel or renew his request for new counsel, we conclude under the circumstances of this case that his request for substitution of counsel was abandoned ( see People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803, lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981, cert. denied ––– U.S. ––––, 132 S.Ct. 318, 181 L.Ed.2d 196).
We also reject the contention of defendant that the court erred in denying that part of his second omnibus motion seeking to sever the counts of the indictment. We conclude that the counts were properly joined inasmuch as “they are ‘defined by the same or similar statutory provisions and consequently are the same or similar in law’ ” ( People v. Davis, 19 A.D.3d 1007, 1007, 797 N.Y.S.2d 673, lv. denied 21 A.D.3d 1442, 801 N.Y.S.2d 555; see CPL 200.20[2][c] ). Defendant “ ‘failed to meet his burden of submitting sufficient evidence of prejudice from the joinder to establish good cause to sever’ ” ( People v. Ogborn, 57 A.D.3d 1430, 1430, 869 N.Y.S.2d 713, lv. denied 12 N.Y.3d 786, 879 N.Y.S.2d 63, 906 N.E.2d 1097; see CPL 200.20[3] ), and the court therefore did not abuse its discretion in denying that part of the second omnibus motion ( see People v. Owens, 51 A.D.3d 1369, 1370–1371, 856 N.Y.S.2d 793, lv. denied 11 N.Y.3d 740, 864 N.Y.S.2d 398, 894 N.E.2d 662; People v. Dozier, 32 A.D.3d 1346, 1346–1347, 821 N.Y.S.2d 726, lv. dismissed 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.