Opinion
1148 KA 18-00927
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Thomas P. PERDUE, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, 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 one count of assault in the second degree ( Penal Law § 120.05 [2] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). The conviction arises from an incident in which defendant, following an argument between the victim and another person, shot the victim in the right leg. 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] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes 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 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 further contends that Supreme Court erred in denying his pretrial request for substitution of counsel. We reject that contention. "Whether counsel is substituted is within the discretion and responsibility of the trial [court] ..., and a court's duty to consider such a [request] is invoked only where a defendant makes a seemingly serious request[ ] ... Therefore, it is incumbent upon a defendant to make specific factual allegations of serious complaints about counsel" in support of his or her request ( People v. Porto , 16 N.Y.3d 93, 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] [internal quotation marks omitted]). Here, we conclude that defendant "failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" ( id. at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Lewicki , 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ). To the contrary, defendant made only conclusory assertions that "did not suggest a serious possibility of good cause for substitution" ( People v. Boswell , 117 A.D.3d 1493, 1494, 984 N.Y.S.2d 734 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] [internal quotation marks omitted]; see People v. Stevenson , 36 A.D.3d 634, 635, 831 N.Y.S.2d 74 [2d Dept. 2007], lv denied 8 N.Y.3d 927, 834 N.Y.S.2d 518, 866 N.E.2d 464 [2007] ).
With respect to defendant's contention that the court erred in permitting the prosecutor to present testimony on redirect examination of a police investigator concerning actions taken by the police to ascertain the shooter's identity, we conclude that the court properly determined that defense counsel opened the door to that testimony during cross-examination of the investigator (see People v. Gonzales , 145 A.D.3d 1432, 1433, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ). "Inasmuch as defendant's cross-examination of a witness may have created a misimpression, the People were entitled to correct that misimpression on redirect examination" ( People v. Paul , 171 A.D.3d 1467, 1469, 99 N.Y.S.3d 529 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 681, 130 N.E.3d 1291 [2019], reconsideration denied 34 N.Y.3d 953, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 1151, 206 L.Ed.2d 203 [2020] ; see People v. Singh , 147 A.D.3d 787, 787, 47 N.Y.S.3d 52 [2d Dept. 2017], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ).
Defendant next contends that the court erred in permitting a certain witness to identify him for the first time at trial. We reject that contention. Where, as here, "there has been no pretrial identification procedure [with respect to a witness] and the defendant is identified in court for the first time [by that witness], the defendant is not [thereby] deprived of a fair trial because [the defendant] is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v. Madison , 8 A.D.3d 956, 957, 778 N.Y.S.2d 593 [4th Dept. 2004], lv denied 3 N.Y.3d 709, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004] [internal quotation marks omitted]; see People v. Jackson , 94 A.D.3d 1559, 1560, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ; People v. Spirles , 275 A.D.2d 980, 981-982, 713 N.Y.S.2d 434 [4th Dept. 2000], lv denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87 [2001] ).
Defendant failed to request a missing witness charge until after the close of proof, and therefore the court properly denied that request as untimely (see People v. Hymes , 132 A.D.3d 1411, 1412, 17 N.Y.S.3d 561 [4th Dept. 2015], lv denied 26 N.Y.3d 1146, 32 N.Y.S.3d 60, 51 N.E.3d 571 [2016] ; People v. Garner , 52 A.D.3d 1329, 1330, 860 N.Y.S.2d 371 [4th Dept. 2008], lv denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions, and we conclude that they do not warrant modification or reversal of the judgment.