Opinion
1274 KA 13–01173
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Trellis L. PRESSLEY, Defendant–appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree ( Penal Law § 130.35 [1] ), defendant contends that Supreme Court violated his right to a fair trial by advising the jury, during the court's preliminary instructions, that defendant was in custody and unable to post bail. Defendant made no objection to the preliminary instructions and thus failed to preserve that contention for our review (see People v. Cooke , 24 N.Y.3d 1196, 1197, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert. denied ––– U.S. ––––, 136 S.Ct. 542, 193 L.Ed.2d 434 [2015] ; see also People v. Griggs , 27 N.Y.3d 602, 606, 36 N.Y.S.3d 421, 56 N.E.3d 203 [2016], rearg. denied 28 N.Y.3d 957, 38 N.Y.S.3d 526, 60 N.E.3d 422 [2016] ). In any event, that contention lacks merit. The court instructed the jury that it was to draw no unfavorable inferences from the fact that defendant was in custody and unable to make bail, and the jury is presumed to have followed that instruction (see People v. Spears , 140 A.D.3d 1629, 1630, 32 N.Y.S.3d 771 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ). We reject defendant's further contention that he was prejudiced by the positioning of a Deputy Sheriff at the defense table (see People v. Gamble , 18 N.Y.3d 386, 396–397, 941 N.Y.S.2d 1, 964 N.E.2d 372 [2012], rearg. denied 19 N.Y.3d 833, 945 N.Y.S.2d 643, 968 N.E.2d 999 [2012] ), or by the court's identification of that Deputy Sheriff by name during its preliminary instructions.
We agree with defendant that the court erred in requiring him to proceed pro se at the Huntley hearing inasmuch as defendant did not waive his right to counsel at the hearing (see generally People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998] ), nor did defendant's conduct support a finding that he forfeited his right to counsel (see People v. Bullock , 75 A.D.3d 1148, 1149–1150, 904 N.Y.S.2d 629 [4th Dept. 2010] ; cf. People v. Isaac , 121 A.D.3d 816, 817–818, 994 N.Y.S.2d 177 [2d Dept. 2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ). The error, however, does not warrant remittal for a new Huntley hearing. Even assuming, arguendo, that defendant would have prevailed at the hearing if he were represented by counsel, we conclude that the evidence of guilt apart from defendant's statements is overwhelming and that the error is harmless beyond a reasonable doubt (see People v. Wardlaw , 6 N.Y.3d 556, 561, 816 N.Y.S.2d 399, 849 N.E.2d 258 [2006] ).
Contrary to defendant's contentions, we conclude that assigned counsel provided meaningful representation at trial (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), there was no indication of any conflict of interest, and the court properly denied defendant's requests for substitute counsel (see People v. Sapienza , 75 A.D.3d 768, 771, 904 N.Y.S.2d 568 [3d Dept. 2010] ).
We reject defendant's contention that the court violated the requirements of CPL 310.30 and People v. O'Rama ( 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ) in connection with the jury's request for exhibits. The jury's request was ministerial in nature and thus the O'Rama procedure was not implicated (see People v. Nealon , 26 N.Y.3d 152, 155–156, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; People v. Ziegler , 78 A.D.3d 545, 546, 911 N.Y.S.2d 331 [1st Dept. 2010], lv denied 16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191 [2011] ).
The evidence, viewed 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] ), is legally sufficient to establish that defendant engaged in sexual intercourse with the victim by forcible compulsion (see People v. Bones , 309 A.D.2d 1238, 1238, 764 N.Y.S.2d 743 [4th Dept. 2003], lv denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ). In addition, viewing the evidence in light of the elements of the crime of rape in the first 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 is not against the weight of the evidence (see People v. Strauss , 147 A.D.3d 1426, 1426, 46 N.Y.S.3d 376 [4th Dept. 2017], lv. denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017], reconsideration denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant failed to preserve for our review his challenge to the court's finding that he is a persistent felony offender (see People v. Roberts , 121 A.D.3d 1530, 1532, 993 N.Y.S.2d 825 [4th Dept. 2014], lv denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ; see generally CPL 400.20 ), as well as a persistent violent felony offender (see CPL 470.05 [2] ; see generally CPL 400.16 ). We decline to exercise our authority to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.