Opinion
No. 2019-02718 Ind. No. 430/11
11-06-2024
The People of the State of New York, respondent, v. David Orama, appellant.
Patricia Pazner, New York, NY (Chelsea Lopez of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent.
Patricia Pazner, New York, NY (Chelsea Lopez of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent.
JOSEPH J. MALTESE, J.P. LARA J. GENOVESI LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered February 14, 2019, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal, which failed to specify any particular error (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 349), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's contention that he was improperly adjudicated a persistent violent felony offender is unpreserved for appellate review because he did not object to his adjudication at the sentencing proceeding (see CPL 470.05[2]; People v Drummond, 143 A.D.3d 836, 838). In any event, the Supreme Court properly adjudicated the defendant a persistent violent felony offender (see Penal Law § 70.08). The defendant's prior convictions of robbery in the second degree pursuant to Penal Law § 160.10 and attempted murder in the first degree pursuant to Penal Law §§ 125.27 and 110.00 were properly considered predicate violent felony convictions (see id. § 70.04[1][b][i]).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109; see People v Evans, 16 N.Y.3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).
Furthermore, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying the defendant's motion to substitute counsel. "'The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at [the] defendant's option'" (People v Graham, 188 A.D.3d 909, 909, quoting People v Washington, 25 N.Y.3d 1091, 1095; see People v Sides, 75 N.Y.2d 822, 824). Whether substitution of counsel is permitted is "within the discretion and responsibility of the trial judge," and a "complaining defendant must make specific factual allegations of serious complaints about counsel" (People v Fulgencio, 168 A.D.3d 1094, 1095 [internal quotation marks omitted]; see People v Porto, 16 N.Y.3d 93, 99-100; People v Sides, 75 N.Y.2d at 824-825; People v Medina, 44 N.Y.2d 199, 207). "Where a seemingly serious request is made, the trial court is obligated to conduct at least a minimal inquiry to determine the nature of the conflict and a possible resolution" (People v Parker, 194 A.D.3d 847, 848 [internal quotation marks omitted]; see People v McCloud, 222 A.D.3d 662, 662).
"[B]efore substitution of counsel is granted, good cause, such as a conflict of interest or irreconcilable differences, must be demonstrated" (People v McCloud, 222 A.D.3d at 662 [internal quotation marks omitted]). "In determining whether good cause has been shown, relevant factors include the timing of the defendant's request, its effect on the progress of the case, and whether... counsel will likely provide the defendant with meaningful assistance" (id. [alterations and internal quotation marks omitted]; see People v Linares, 2 N.Y.3d 507, 510). Here, at a pretrial conference held on January 22, 2019, the Supreme Court made the requisite "minimal inquiry" into the alleged conflict between the defendant and defense counsel (People v McCloud, 222 A.D.3d at 663; see People v Harris, 166 A.D.3d 801, 802) and appropriately determined that the alleged conflict did not warrant substitution of counsel (see People v Brown, 154 A.D.3d 1004, 1006).
Although the defendant again requested substitute counsel after the proceeding had been transferred to the trial part, the Supreme Court was not obligated to make an additional minimal inquiry into the defendant's request, as it was based on a conclusory statement regarding alleged conflict with his attorney (see People v Woods, 110 A.D.3d 748, 748).
MALTESE, J.P., GENOVESI, WAN and GOLIA, JJ., concur.