Opinion
76 KA 16–00157
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Christopher HICKEY, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of unauthorized use of a vehicle in the third degree and dismissing count three of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of grand larceny in the fourth degree ( Penal Law § 155.30[8] ) and unauthorized use of a vehicle in the third degree (§ 165.05[1] ). As defendant correctly concedes, "[b]y making only a general motion to dismiss the charges ... after the People rested their case ..., and by failing to renew ... the motion at the close of his case," defendant failed to preserve his contention that the conviction of grand larceny in the fourth degree is not supported by legally sufficient evidence ( People v. Morris, 126 A.D.3d 1370, 1371, 6 N.Y.S.3d 815 [4th Dept. 2015], lv denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, contrary to defendant's contention, there is a "valid line of reasoning and permissible inferences" that could lead a rational person to conclude, beyond a reasonable doubt ( People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), that when defendant took the vehicle from the victim, he "did so with the intent to deprive the [victim] of [her] vehicle within the meaning of Penal Law § 155.00(3)" ( People v. Rolle, 41 A.D.3d 320, 320, 838 N.Y.S.2d 71 [1st Dept. 2007], lv denied 9 N.Y.3d 964, 848 N.Y.S.2d 32, 878 N.E.2d 616 [2007] ; see People v. Brightly, 148 A.D.2d 623, 624, 539 N.Y.S.2d 86 [2d Dept. 1989], lv denied 74 N.Y.2d 737, 545 N.Y.S.2d 111, 543 N.E.2d 754 [1989] ). Here, there was ample evidence in the record that defendant never received permission to take the vehicle and, even after he was contacted by the victim and a police officer and informed the police officer that he would return the vehicle within 20 minutes, he did not do so. Rather, the vehicle was recovered only after defendant was arrested when the police spotted the vehicle at a convenience store. For the same reasons, viewing the evidence in light of the elements of the crime of grand larceny in the fourth 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 [2007] ), we conclude that the verdict convicting defendant of that crime is not against the weight of the evidence (see 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 further contention that he was denied effective assistance of counsel based on defense counsel's failure to make a specific motion for a trial order of dismissal on the ground that the conviction of grand larceny in the fourth degree is not supported by legally sufficient evidence. It is well settled that "[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( 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] ; see People v. Bakerx, 114 A.D.3d 1244, 1245, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ), and here "there was no chance that such a motion would have succeeded" ( People v. Heary, 104 A.D.3d 1208, 1209, 960 N.Y.S.2d 812 [4th Dept. 2013], lv denied 21 N.Y.3d 943, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013], reconsideration denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ; see Bakerx, 114 A.D.3d at 1245, 980 N.Y.S.2d 210 ). With respect to defendant's claim that defense counsel was ineffective for failing to consult with him when he was removed from the courtroom during trial, we conclude that defendant "failed to sustain his burden to establish that his attorney ‘failed to provide meaningful representation’ that compromised his ‘right to a fair trial’ " ( People v. Pavone, 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015], quoting People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Huddleston, 160 A.D.3d 1359, 1361, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ).
Contrary to defendant's further contention, we conclude that Supreme Court did not abuse its discretion by denying his request for substitution of counsel (see generally People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). After making the requisite "minimal inquiry" into defendant's objections with respect to defense counsel ( id. at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ), the court "properly determined that there was no basis for substitution of counsel or for further inquiry" ( People v. Williams, 163 A.D.3d 1422, 1423–1424, 80 N.Y.S.3d 610 [4th Dept. 2018] [internal quotation marks omitted]; see People v. Harris, 151 A.D.3d 1720, 1721, 55 N.Y.S.3d 844 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ; People v. Benson, 203 A.D.2d 966, 966, 611 N.Y.S.2d 407 [4th Dept. 1994], lv denied 83 N.Y.2d 964, 616 N.Y.S.2d 17, 639 N.E.2d 757 [1994] ).
Finally, "because it is impossible to commit the crime of grand larceny in the fourth degree under Penal Law § 155.30(8) without concomitantly committing the crime of unauthorized use of a vehicle in the third degree under section 165.05(1)" ( People v. Swick, 158 A.D.3d 1131, 1132, 70 N.Y.S.3d 651 [4th Dept. 2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ), we agree with defendant and the People that count three of the indictment, charging the latter crime, must be dismissed because it is a lesser inclusory concurrent count of count two, charging the former crime (see generally People v. Miller, 6 N.Y.3d 295, 300, 812 N.Y.S.2d 20, 845 N.E.2d 451 [2006] ). We therefore modify the judgment accordingly.