Opinion
14371.
Decided and Entered: June 10, 2004.
Appeal from a judgment of the Supreme Court (Teresi, J.), rendered July 24, 2002 in Rensselaer County, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.
G. Scott Walling, Queensbury, for appellant.
Patricia A. De Angelis, District Attorney, Troy (Bruce E. Knoll of counsel), for respondent.
Before: Spain, J.P., Carpinello, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
On July 28, 2001 at about 2:30 A.M., William Bowles Jr., an undercover police officer who was conducting a "buy and bust" operation, drove on a street in the City of Troy, Rensselaer County, where he encountered defendant on a bicycle. Defendant, in conjunction with two other nearby individuals, allegedly sold crack cocaine to Bowles. According to Bowles, there were no other individuals in the vicinity and he immediately radioed to back-up officers a description of defendant and the other two individuals, one of whom he knew from a prior encounter. He then circled the block while the officers apprehended the three individuals and, within two to three minutes of the transaction, he returned and identified the three individuals. Defendant was indicted for, among other crimes, criminal sale of a controlled substance in the third degree. He was found guilty following a jury trial and was sentenced, as a second felony offender, to a prison term of 12½ to 25 years. Defendant appeals.
Defendant initially argues that Supreme Court erred in not ruling on certain issues he raised in a pro se motion that he filed while being represented by counsel. There is "no constitutional right to hybrid representation" and, thus, "the decision to allow such representation lies within the sound discretion of the trial court" (People v. Rodriguez, 95 N.Y.2d 497, 502; see People v. Ferguson, 67 N.Y.2d 383, 390; People v. Toland, 2 A.D.3d 1053, 1056). Defendant moved for new assigned counsel and also requested in the motion, among other things, that the indictment be dismissed as having been obtained in violation of his right to testify before the grand jury and that Bowles' on-the-scene identification of him be suppressed as the product of an illegal arrest. The court informed defendant that, other than the request for new counsel, it would not rule on the issues raised in the motion unless they were adopted by his counsel. New counsel was assigned to defendant's case and the attorney was instructed by the court on the record to review defendant's pro se motion. Thereafter, defendant's new counsel made an omnibus motion that did not include defendant's specific dismissal and suppression arguments. After review of the record, we find no abuse of discretion in Supreme Court's refusal to entertain the issues raised in the pro se motion.
Nor did his counsel's decision not to assert these issues constitute, as contended by defendant, the ineffective assistance of counsel (see People v. Henry, 95 N.Y.2d 563, 565; People v. Rivera, 71 N.Y.2d 705, 708-709). Defendant alleged only an oral request to testify before the grand jury (see People v. Colantonio, 277 A.D.2d 498, 499, lv denied 96 N.Y.2d 781) and he failed to make his motion to dismiss within five days (see People v. Gonzales, 168 A.D.2d 743, 744, lv denied 77 N.Y.2d 906). With regard to the circumstances surrounding defendant's arrest, while defense counsel challenged whether Bowles' identification was confirmatory (see People v. Wharton, 74 N.Y.2d 921), counsel did not challenge the legality of the arrest (see People v. Gethers, 86 N.Y.2d 159). Generally, the failure "to make a particular pretrial motion * * * does not, by itself, establish ineffective assistance of counsel" (People v. Rivera, supra at 709; see People v. Meissler, 305 A.D.2d 724, 726, lv denied 100 N.Y.2d 644) and, here, there was proof that Bowles' description included (at a minimum) that there were three African-American males (one on a bicycle and one with thick glasses), the backup officers were in very close proximity (resulting in visual contact within seconds and apprehension of the three suspects in less than a minute) and there were no other individuals in the general vicinity. Under such circumstances, we are unpersuaded that defendant demonstrated "the absence of strategic or other legitimate explanations for counsel's failure to request a particular hearing" (People v. Rivera, supra at 709).
Next, defendant asserts that the proof identifying him as the person who sold crack cocaine to Bowles was "very tenuous" and, thus, the verdict was against the weight of the evidence. If it is determined that "a verdict contrary to that reached by the jury is not wholly unreasonable, this Court must `weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (People v. Wood, 299 A.D.2d 739, 741, lv denied 99 N.Y.2d 621, quoting People v. Bleakley, 69 N.Y.2d 490, 495). While a different verdict would not have been wholly unreasonable, after our review of the evidence in a neutral light with due deference accorded to the jury's resolution of credibility issues, we are unpersuaded that the verdict was against the weight of the evidence (see People v. Gallup, 302 A.D.2d 681, 683, lv denied 100 N.Y.2d 594). Proof was elicited indicating that Bowles viewed defendant for a short period of time and that the street may not have been well lit where the transaction occurred. There was also evidence, however, that Bowles observed defendant from close up for at least a few seconds on two occasions during the transaction, there were street lights in the vicinity, he had received training regarding identifying individuals and had participated in prior "buy and bust" operations. In light of this evidence, the jury's decision to credit Bowles' testimony identifying defendant as the person who sold him the crack cocaine was not against the weight of the evidence.
Defendant argues that Supreme Court erred in denying his request, made after proof was closed, to display his tattoos to the jury. We find this argument unpersuasive since there was no proof that defendant's tattoos were in existence on the date of the drug transaction (see People v. Rodriguez, 64 N.Y.2d 738, 741), the tattoos were — as noted by Supreme Court — plainly visible to the jury from defendant's position at the defense table and defense counsel called attention to the tattoos during summation without objection.
Finally, defendant contends that his sentence was harsh and excessive and should be reduced in the interest of justice. We cannot agree. Although defendant received the maximum sentence, he had a lengthy criminal record with over 30 arrests since 1978. Supreme Court did not abuse its discretion in imposing the maximum sentence and defendant has not shown extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. York, 2 A.D.3d 1158, 1160; People v. Green, 270 A.D.2d 566, 569, lv denied 95 N.Y.2d 853).
Spain, J.P., Carpinello, Mugglin and Rose, JJ., concur.
ORDERED that the judgment is affirmed.