Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Michael BROOKS, Defendant–Appellant.
Williams Heinl Moody Buschman, P.C., Auburn (Mario J. Gutierrez of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), for Respondent.
Williams Heinl Moody Buschman, P.C., Auburn (Mario J. Gutierrez of Counsel), for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[3] ) and sentencing him as a persistent violent felony offender to an indeterminate term of incarceration of 25 years to life. Defendant failed to preserve for our review his claim pursuant to CPL 30.20 that he was denied a speedy trial inasmuch as he did not move in writing to dismiss the indictment on that ground (see CPL 210.20[1][g] ; 210.45[1]; see also People v. Chinn, 104 A.D.3d 1167, 1169, 960 N.Y.S.2d 788, lv.
denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 ). In any event, we conclude, upon our evaluation of the pertinent factors (see generally People v. Vernace, 96 N.Y.2d 886, 887, 730 N.Y.S.2d 778, 756 N.E.2d 66 ; People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ), that the contention lacks merit (see People v. Johnson, 134 A.D.3d 1388, 1388–1390, 22 N.Y.S.3d 265 ).
County Court properly denied defendant's motion to dismiss the indictment on the ground that he was shackled while testifying before the grand jury. Although “a criminal defendant may not be physically restrained in the presence of a [grand] jury unless there is a rational basis, articulated on the record, for the restraint (see People ex rel. Washington v. Johnson, 79 N.Y.2d 934, 935, 583 N.Y.S.2d 184, 592 N.E.2d 792 ; People v. Mendola, 2 N.Y.2d 270, 275, 159 N.Y.S.2d 473, 140 N.E.2d 353 )” (People v. Felder [Appeal No. 2], 201 A.D.2d 884, 885, 607 N.Y.S.2d 793 lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301 ), reversal is not required here inasmuch as “the prosecutor twice gave cautionary instructions to the [g]rand [j]ury, which dispelled any prejudice that may have resulted” (Felder, 201 A.D.2d at 885, 607 N.Y.S.2d 793 ). Moreover, the overwhelming nature of the evidence adduced before the grand jury eliminated the possibility that defendant was prejudiced as a result of the improper shackling (see People v. Morales, 132 A.D.3d 1410, 1410, 17 N.Y.S.3d 259 ; People v. Burroughs, 108 A.D.3d 1103, 1106, 968 N.Y.S.2d 773, lv. denied 22 N.Y.3d 995, 981 N.Y.S.2d 1, 3 N.E.3d 1169 ; see generally People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ).
The court did not err in granting defendant's request to represent himself at trial. “A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). Here, the court conducted the requisite “searching inquiry” to “ensure that the defendant's waiver [was] knowing, intelligent, and voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255, cert. denied sub nom. New York v. Wingate, ––– U.S. ––––, 132 S.Ct. 1746, 182 L.Ed.2d 531 ). Moreover, the court further inquired sufficiently to ensure that defendant “was aware of the dangers and disadvantages of proceeding without counsel” (People v. Providence, 2 N.Y.3d 579, 582, 780 N.Y.S.2d 552, 813 N.E.2d 632 [internal quotation marks omitted]; see Crampe, 17 N.Y.3d at 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255 ).
Viewing the evidence in light of the elements of the crime of assault in the second 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 ), we 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 ). We note, specifically, that the verdict is not against the weight of the evidence with respect to whether defendant caused a physical injury to the correction officer, nor with respect to whether defendant intended to prevent the correction officer from performing a lawful duty (see People v. Pena, 129 A.D.3d 600, 600, 11 N.Y.S.3d 596, lv. denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 ; see generally Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).
Finally, we conclude that, in light of defendant's history of violent crimes and his conduct in this case, the sentence imposed is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.