Opinion
2014–2853 OR CR.
04-26-2016
The PEOPLE of the State of New York, Respondent, v. Max S. LaBAGH, Appellant.
Appeal from a judgment of the Justice Court of the Town of Wawayanda, Orange County (Shawn R. O'Connor, J.), rendered November 14, 2014. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree, reckless endangerment in the second degree, criminal mischief in the fourth degree, and harassment in the second degree.
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of criminal mischief in the fourth degree and dismissing the count of the prosecutor's information charging that offense; as so modified, the judgment of conviction is affirmed.
The People commenced this action by filing a felony complaint. Subsequently, at the direction of the Justice Court (see CPL 180 .50[3][a][i] ), the People filed a prosecutor's information charging defendant with the following non-felony offenses: criminal contempt in the second degree (Penal Law § 215.50[3] ), reckless endangerment in the second degree (Penal Law § 120.20 ), criminal mischief in the fourth degree (Penal Law § 145.00[1] ), and harassment in the second degree (Penal Law § 240.26[1] ). After a jury trial, defendant was convicted of all four charges.
Defendant contends on appeal that so much of the prosecutor's information as charged him with criminal mischief in the fourth degree is jurisdictionally defective.
“A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she ... [i]ntentionally damages the property of another” (Penal Law § 145.00[1] ). In order for the felony complaint to be properly converted to a prosecutor's information and the charge reduced to a misdemeanor (see CPL 180 .50[3][a] ), the felony complaint and/or any supporting depositions accompanying it must contain factual allegations which “are legally sufficient to support the charge that defendant committed the non-felony offense in question” (CPL 180.50[3][a] ; see also Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.10 ). Here, the factual portion of the felony complaint and the accompanying supporting depositions fail to make any reference to defendant having damaged the property of another. Consequently, the prosecutor's information was jurisdictionally defective in that it improperly alleged facts which had not been alleged in either the felony complaint or the supporting depositions, which facts were essential in setting forth the requisite conduct constituting a violation of criminal mischief in the fourth degree (see CPL 100.10[3] ; 180.50[3]; 100.40[3]; 100.35).
Defendant and his twin brother, Michael, were represented by one attorney at their joint jury trial. Defendant contends on appeal that he was not afforded the effective assistance of counsel on the ground that his waiver of his right to separate representation and of his attorney's potential conflict was invalid.
Prior to trial, the court conducted an extensive inquiry pursuant to People v. Gomberg (36 N.Y.2d 307 [1975] ), during which the court discussed the potential risks involved in dual representation. Defendant repeatedly acknowledged his understanding of the possible ramifications that may be associated with his election to be simultaneously represented by the same attorney representing the codefendant and, after full discussion with counsel, informed the court that he wanted counsel to represent him despite any potential conflict of interest that may be associated with counsel's dual representation (see People v. Marcerola, 47 N.Y.2d 257, 263 [1979] ; People v. Taylor, 52 AD3d 1327, 1328 [2008] ). Consequently, we find that defendant validly waived his right to separate representation and his attorney's conflict of interest (see People v. Solomon, 20 NY3d 91, 95 [2012] ). We note that, even were defendant's waiver not valid, defendant has not established “that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” (People v. Konstantinides, 14 NY3d 1, 10 [2009] [internal quotation marks and citations omitted] ).
To the extent that defendant argues that he was denied his right to the effective assistance of counsel under both the New York State (see People v. Benevento, 91 N.Y.2d 708 [1998] ) and federal standards (see Strickland v. Washington, 466 U.S. 668 [1984] ; Rosario v. Ercole, 601 F3d 118 [2d Cir2010] ) based on matters appearing in the record, we find that defendant's contention lacks merit. To the extent that defendant's contention rests on matters dehors the record, it may not be reviewed on this appeal (see People v. Wornell, 112 AD3d 656 [2013] ).
Contrary to defendant's contention, the sentence imposed by the Justice Court was neither unduly harsh nor excessive and it does not offend any of the sentencing parameters set forth in People v. Suitte (90 A.D.2d 80 [1982] ).
Accordingly, the judgment is modified by vacating the conviction of criminal mischief in the fourth degree and dismissing the count of the prosecutor's information charging that offense.
IANNACCI, J.P., and TOLBERT, J., concur.