Opinion
800 KA 18-00564
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Frank D. FULTON, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, 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 grand larceny in the fourth degree ( Penal Law § 155.30 [1] ). Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), and affording them the benefit of every favorable inference (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we conclude that the evidence is legally sufficient to establish that defendant acted in concert with his two codefendants to steal property. Specifically, based on the evidence that defendant watched the initial stages of the theft and appeared to be acting as a lookout, accompanied a codefendant who left the store with the stolen property, assisted that codefendant in loading the property into a car, and was apprehended in that car with the codefendants and the stolen property, "[t]he jury could reasonably have inferred that, by reason of his conduct, defendant had the requisite intent to commit a larceny" ( People v. Farmer , 156 A.D.2d 1003, 1004, 549 N.Y.S.2d 288 [4th Dept. 1989], lv denied 75 N.Y.2d 868, 553 N.Y.S.2d 299, 552 N.E.2d 878 [1990] ; see People v. Strauss , 155 A.D.3d 1317, 1318, 64 N.Y.S.3d 771 [3d Dept. 2017], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; People v. Middleton , 151 A.D.3d 491, 492, 57 N.Y.S.3d 30 [1st Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ). Furthermore, viewing the evidence in light of the elements of the crime 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 reject defendant's additional contention that the verdict is 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 ).
Defendant failed to preserve his contention that County Court should have precluded a mall security guard's testimony under the best evidence rule (see People v. Steinhilber , 133 A.D.3d 798, 799, 19 N.Y.S.3d 187 [2d Dept. 2015], lv denied 27 N.Y.3d 1155, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ). In any event, that contention lacks merit. The evidence at trial established that the security cameras that the guard used to observe defendant in the parking lot also recorded the incident, but the system later failed, causing the loss of the video that the system made of the event. Thus, because the People introduced the security guard's testimony to establish the events that he observed, which are facts "existing independently of the ... recording, ‘the best evidence rule was inapplicable and the [events] could be testified to by anyone who’ " observed them ( People v. Vernay , 174 A.D.3d 1485, 1486, 106 N.Y.S.3d 507 [4th Dept. 2019] ; see People v. Lofton , 226 A.D.2d 1082, 1082, 642 N.Y.S.2d 113 [4th Dept. 1996], lv denied 88 N.Y.2d 938, 647 N.Y.S.2d 171, 670 N.E.2d 455 [1996], reconsideration denied 88 N.Y.2d 1022, 651 N.Y.S.2d 21, 673 N.E.2d 1248 [1996] ).
We reject defendant's further contention that the 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, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). Only where a defendant makes "specific factual allegations of serious complaints about counsel" must the court make 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] ), and the court is required to 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 824, 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, even assuming, arguendo, that defendant made "specific factual allegations of serious complaints about counsel" ( People v. White , 202 A.D.3d 1481, 1482, 158 N.Y.S.3d 909 [4th Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022] [internal quotation marks omitted]), we conclude that the court "conducted the requisite ‘minimal inquiry’ to determine whether substitution of counsel was warranted" ( People v. Chess , 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018], lv denied 32 N.Y.3d 936, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018], quoting Sides , 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). The record establishes that the court on several occasions "allowed defendant to air his concerns about defense counsel, and ... reasonably concluded that defendant's vague and generic objections had no merit or substance" ( People v. Linares , 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ), and "properly concluded that defense counsel was ‘reasonably likely to afford ... defendant effective assistance’ of counsel" ( People v. Bradford , 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014], quoting People v. Medina , 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ; see Chess , 162 A.D.3d at 1579, 79 N.Y.S.3d 433 ).
Defendant contends that the court was required to replace a juror during deliberations because the juror sent a note to the court and made statements that, according to defendant, suggested that she might have been prejudiced against him. Because "defendant never requested that the juror[ ] in question be discharged ..., his current contention in this regard has not been preserved for appellate review" ( People v. Fernandez , 269 A.D.2d 167, 167, 701 N.Y.S.2d 907 [1st Dept. 2000], lv denied 95 N.Y.2d 796, 711 N.Y.S.2d 164, 733 N.E.2d 236 [2000] ; cf. People v. Spencer , 29 N.Y.3d 302, 311 n. 2, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017], rearg denied 31 N.Y.3d 1074, 78 N.Y.S.3d 272, 102 N.E.3d 1053 [2018] ). In any event, there was no basis upon which the court was required to dismiss the sworn juror as "grossly unqualified to serve in the case" ( CPL 270.35 [1] ). Although the juror initially expressed some concern over her well being, she ultimately assured the court in unequivocal terms that she would be fair and impartial and would follow the court's instructions (see generally People v. Buford , 69 N.Y.2d 290, 297-299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ; People v. Buchholz , 23 A.D.3d 1093, 1094, 805 N.Y.S.2d 763 [4th Dept. 2005], lv denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975 [2006] ).
Defendant's contention that he was denied effective assistance of counsel lacks merit. With respect to defendant's claim that defense counsel was ineffective in failing to move to replace the sworn juror in question, defendant " ‘failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e] ... juror[ ]’ " ( People v. Carpenter , 187 A.D.3d 1556, 1557, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ; see also People v. Maffei , 35 N.Y.3d 264, 273, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ). In addition, it is well settled that "[t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ) and, for the reasons discussed above, such a motion would have been subject to denial. For the same reason, we reject defendant's claim that counsel was ineffective in failing to move to preclude the security guard's testimony pursuant to the best evidence rule. With respect to defendant's remaining allegations of ineffective assistance of counsel, the record, viewed as a whole, demonstrates 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 [1981] ).