Opinion
109872
05-12-2022
The PEOPLE of the State of New York, Respondent, v. Dennis BOODROW, Appellant.
Amanda FiggsGanter, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Amanda FiggsGanter, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeal from a judgment of the County Court of Albany County (Young, J.), rendered July 20, 2017, upon a verdict convicting defendant of the crime of grand larceny in the third degree.
In January 2016, defendant and Steven Lawless were arrested for stealing a set of rims and tires off a vehicle. Defendant later reached an agreement with the People whereby he would be permitted to plead guilty to a misdemeanor with a sentence of one year in jail in exchange for his testimony against Lawless. In May 2016, defendant executed a CPL 190.45 waiver of immunity and testified before the grand jury admitting that he and Lawless stole the rims and tires. Lawless later elected to plead guilty, and, in doing so, he attempted to take full responsibility for the subject crime, which ultimately led to defendant asserting his innocence and rejecting his negotiated plea agreement. In June 2016, the same grand jury voted to indict defendant on one count of grand larceny in the third degree. A jury found him guilty as charged, discrediting the alibi testimony offered by Lawless. Defendant was then sentenced, as a second felony offender, to a prison term of 3½ to 7 years. He appeals.
We initially reject defendant's contention that he was deprived of his statutory right to testify before the grand jury. Setting aside the fact that defendant did indeed testify before the grand jury that ultimately indicted him, the record reflects that the People gave defendant notice of the June 2016 grand jury proceeding, the reasonableness of which is not challenged, and there is no indication, or assertion, that defendant provided the People with the requisite written notice of his intent to testify thereat (see CPL 190.50[5][a] ; People v. Morton, 198 A.D.3d 1176, 1177, 157 N.Y.S.3d 129 [2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [2022] ). To the extent that he asserts that certain oral notice of his intent to testify was sufficient, "[n]o extenuating circumstances exist here" so as to permit such notice, "and nothing in the record suggests that the People waived the statutory written notice requirement" ( People v. Wilkerson, 140 A.D.3d 1297, 1300, 33 N.Y.S.3d 523 [2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; see People v. Colantonio, 277 A.D.2d 498, 499, 715 N.Y.S.2d 764 [2000], lv denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ). We are also not persuaded by defendant's contention that County Court abused its discretion in denying his repeated requests to substitute his third attorney and thereby deprived him of his right to counsel. Upon defendant's first request to substitute his third attorney, County Court went well beyond the requisite "minimal inquiry" into defendant's complaints ( People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ; see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ), allowing him an extended opportunity "to air his concerns" about counsel ( People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ), along with unrelated issues upon which the court had already ruled, and the court appropriately questioned counsel regarding certain of defendant's allegations (see People v. Edwards, 96 A.D.3d 1089, 1092, 946 N.Y.S.2d 269 [2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ). Under the specific circumstances of this case (see People v. Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 ), County Court providently exercised its discretion in denying the foregoing application, albeit implicitly, as defendant failed to demonstrate "good cause" for substituting in a fourth attorney ( People v. Smith, 18 N.Y.3d 588, 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; see People v. Benjamin, 203 A.D.3d 617, 617, 162 N.Y.S.3d 726 [2022] ; People v. Abussalam, 196 A.D.3d 1000, 1007, 151 N.Y.S.3d 743 [2021], lv denied 37 N.Y.3d 1144, 159 N.Y.S.3d 347, 180 N.E.3d 511 [2021] ; People v. Harris, 166 A.D.3d 801, 801–802, 87 N.Y.S.3d 235 [2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 247, 122 N.E.3d 1159 [2019] ; People v. Larkins, 128 A.D.3d 1436, 1440–1441, 8 N.Y.S.3d 755 [2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ). Defendant's subsequent requests to substitute counsel were no more than reiterated or otherwise generic complaints, and therefore no further inquiry from the court was warranted (see People v. Johnson , 195 A.D.3d 859, 861, 145 N.Y.S.3d 844 [2021], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 792, 178 N.E.3d 439 [2021] ; People v. Brady, 192 A.D.3d 1557, 1558, 140 N.Y.S.3d 846 [2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 522, 170 N.E.3d 396 [2021] ; People v. Harris, 151 A.D.3d 1720, 1721, 55 N.Y.S.3d 844 [2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ). Turning to the performance of defendant's various attorneys, his first allegation of ineffective assistance of counsel concerns the foregoing CPL 190.50 matter. To the extent that this may be considered a record-based claim (see People v. Irick, 203 A.D.3d 517, 518–519, 163 N.Y.S.3d 530 [2022] ; People v. Townsend, 202 A.D.3d 447, 448, 160 N.Y.S.3d 251 [2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 446, 185 N.E.3d 967 [2022] ), it cannot be said that defendant's first attorney was without strategy in declining to facilitate defendant's second appearance before the grand jury in view of defendant's intent to offer alibi evidence after having already provided sworn testimony that he committed the subject crime (see generally People v. Hogan, 26 N.Y.3d 779, 786–787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ). In view of the trial evidence and the fact that the jury ultimately rejected defendant's alibi defense, defendant has also failed to establish that he suffered any prejudice from the purported error (see People v. Hogan, 26 N.Y.3d at 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 ; People v. Washington, 192 A.D.3d 1535, 1535, 140 N.Y.S.3d 838 [2021] ; People v. Graham, 185 A.D.3d 1221, 1223, 127 N.Y.S.3d 647 [2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 332, 159 N.E.3d 1099 [2020] ; People v. Lasher, 166 A.D.3d 1242, 1242, 88 N.Y.S.3d 277 [2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 584, 121 N.E.3d 211 [2019] ).
Defendant also claims that his third attorney repeatedly took positions adverse to his interests (see generally People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ). The first such alleged instance involved a pro se motion in which defendant sought dismissal of the indictment on the ground that he had been denied his statutory right to a speedy trial. Upon our review of the record, we find that counsel's challenged remark regarding defendant's motion did not create the sort of actual conflict of interest that would have necessitated appointment of new counsel (see e.g. People v. Joe, 166 A.D.3d 514, 515, 86 N.Y.S.3d 432 [2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 201, 122 N.E.3d 1114 [2019] ; People v. Martinez, 166 A.D.3d 1558, 1559, 88 N.Y.S.3d 732 [2018] ; People v. Maxwell, 130 A.D.3d 533, 535, 14 N.Y.S.3d 32 [2015], lv denied 26 N.Y.3d 1010, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ; People v. Cottrell, 34 A.D.3d 1345, 1346, 824 N.Y.S.2d 535 [2006], lv denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007] ). Even if the brief remark may have arguably been adverse to defendant's motion, the record reveals that County Court's decision to deny defendant's standard form, conclusory motion was not influenced by matters other than those of which it was already aware (see People v. Foxworth, 25 A.D.3d 481, 482, 807 N.Y.S.2d 296 [2006], lv denied 7 N.Y.3d 756, 819 N.Y.S.2d 881, 853 N.E.2d 252 [2006] ; People v. Thaxton, 309 A.D.2d 1255, 1256, 765 N.Y.S.2d 809 [2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ; People v. Burgos, 298 A.D.2d 190, 190, 748 N.Y.S.2d 49 [2002], lv denied 99 N.Y.2d 580, 755 N.Y.S.2d 716, 785 N.E.2d 738 [2003] ). The other instance cited by defendant involves the same attorney's request that County Court order a competency examination to ensure that defendant could assist in his own defense. However, in requesting a "[CPL] article 730 competency examination over defendant's objection, his legal advisor sought to act in defendant's interest, not contrary to it" ( People v. Findley, 160 A.D.3d 492, 493, 74 N.Y.S.3d 218 [2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ).
The balance of defendant's ineffective assistance of counsel claim is premised upon matters outside the record more appropriately raised in a CPL article 440 motion (see People v. Danzy, 182 A.D.3d 920, 921–922, 123 N.Y.S.3d 261 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 857, 151 N.E.3d 539 [2020] ; People v. Horton, 173 A.D.3d 1338, 1341, 104 N.Y.S.3d 363 [2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 701, 133 N.E.3d 402 [2019] ). In sum, upon a review of the record as a whole, we are assured that defendant was provided with meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 711–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Finally, defendant's challenge to his sentence is moot given that he has been discharged from both prison and parole supervision (see People v. Vivona, 199 A.D.3d 1165, 1166, 156 N.Y.S.3d 602 [2021] ; People v. Vittengl, 195 A.D.3d 1233, 1234, 145 N.Y.S.3d 868 [2021] ).
Egan Jr., J.P., Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.