Opinion
952 KA 17-00193
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Bashan H. BRADY, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. BASHAN H. BRADY, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
BASHAN H. BRADY, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, BANNISTER, AND DEJOSEPH, 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 following a jury trial of two counts of robbery in the second degree ( Penal Law § 160.10 [1], [2] [a] ), defendant contends in his main brief that the conviction is not supported by legally sufficient evidence that he was present at and involved in the robbery and that the victim sustained a physical injury. We reject that contention. The People presented evidence that the victim knew defendant from previous interactions with him and that, while the victim was seated in his car, he was approached by defendant and another individual, who began punching the victim from either side of the driver's seat and then took his property (see generally People v. Ettleman , 109 A.D.3d 1126, 1127-1128, 971 N.Y.S.2d 621 [4th Dept. 2013], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] ). Further, the victim's testimony that he suffered injuries to his finger, requiring 8 to 10 stitches, as well as injuries to his head and neck, which he testified were "quite painful," is legally sufficient to establish that his pain was substantial, i.e., "more than slight or trivial," and thus that he sustained a physical injury at the hand of defendant ( People v. Kraatz , 147 A.D.3d 1556, 1557, 47 N.Y.S.3d 817 [4th Dept. 2017] [internal quotation marks omitted]). 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 [2007] ), we also reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention, raised in his main brief, that County Court erred in refusing to substitute counsel in place of his assigned attorney. A court's duty to consider a motion to substitute counsel is invoked only when a defendant makes a "seemingly serious request[ ]" for new counsel ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] [internal quotation marks omitted]; see People v. Sides , 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). When a defendant makes "specific factual allegations of serious complaints about counsel," the court must make at least a "minimal inquiry" into "the nature of the disagreement or its potential for resolution" ( Porto , 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [internal quotation marks omitted]; see People v. Gibson , 126 A.D.3d 1300, 1301-1302, 6 N.Y.S.3d 198 [4th Dept. 2015] ). Upon conducting that inquiry, the court may substitute counsel only where good cause is shown (see Porto , 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; Sides , 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; Gibson , 126 A.D.3d at 1302, 6 N.Y.S.3d 198 ). Here, defendant's request for substitution was based on conclusory assertions that he and defense counsel disagreed about trial strategy and that defense counsel had not spoken to him often enough about the case. Those assertions were insufficient to require an inquiry by the court (see People v. Barnes , 156 A.D.3d 1417, 1418, 67 N.Y.S.3d 373 [4th Dept. 2017], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018] ; People v. Lewicki , 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; People v. Benson , 265 A.D.2d 814, 814-815, 697 N.Y.S.2d 222 [4th Dept. 1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000] ). Nevertheless, the court conducted an inquiry in which it permitted defendant to "articulate his complaints about defense counsel" ( People v. Jones , 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019] ), following which the court properly denied defendant's request inasmuch as good cause does not exist where, as here, "on the eve of trial, disagreements over trial strategy generate discord" ( People v. Linares , 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ; see Porto , 16 N.Y.3d at 101-102, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Medina , 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ) or where defendant makes only generic complaints concerning a lack of communication with defense counsel (see People v. Larkins , 128 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ).
Contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe (see People v. Bonner , 79 A.D.3d 1790, 1791, 913 N.Y.S.2d 465 [4th Dept. 2010], lv denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 [2011] ).
Defendant contends in his pro se supplemental brief that he was deprived of his right to testify before the grand jury because he was assigned an attorney after he was indicted. Defendant did not provide a factual record sufficient to enable us to review his contention (see People v. Kinchen , 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ; People v. Dixon , 37 A.D.3d 1124, 1124, 829 N.Y.S.2d 342 [4th Dept. 2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ; People v. Harden , 6 A.D.3d 181, 182, 778 N.Y.S.2d 7 [1st Dept. 2004], lv denied 3 N.Y.3d 641, 782 N.Y.S.2d 412, 816 N.E.2d 202 [2004] ). Even assuming, arguendo, that defendant was without counsel when the matter was presented to the grand jury, we would nevertheless conclude that reversal is not required inasmuch as defendant did not seek dismissal of the indictment on the ground that he was deprived of his statutory right to testify before the grand jury (see Dixon , 37 A.D.3d at 1124, 829 N.Y.S.2d 342 ; cf. People v. Backman , 274 A.D.2d 432, 433, 710 N.Y.S.2d 122 [2d Dept. 2000] ; see generally People v. Johnston , 178 A.D.2d 550, 550-551, 577 N.Y.S.2d 644 [2d Dept. 1991] ).
We have considered defendant's remaining contention in his pro se supplemental brief and conclude that it does not warrant modification or reversal of the judgment.