Opinion
7144 7144A 7144B 7144C 7144D 7144E 7144F M–4167 M–4314 Ind. 3297/11 3298/11 3299/11 3300/11 3301/11 3307/11 2047/12
09-25-2018
The PEOPLE of the State of New York, Respondent, v. Jose RAMOS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Acosta, P.J., Sweeny, Manzanet–Daniels, Gesmer, Singh, JJ.
Judgment, Supreme Court, Bronx County (Steven L. Barrett, J. at removal of counsel; Michael A. Gross, J. at jury trial and sentencing), rendered December 10, 2014, convicting defendant of attempted grand larceny in the third degree, attempted robbery in the second degree and attempted criminal possession of a controlled substance in the first degree, and sentencing him to consecutive terms of one to three years, 2½ years and nine years, unanimously modified, on the law, to the extent of reducing the attempted robbery conviction to attempted petit larceny and reducing the sentence on that conviction to time served, and otherwise affirmed. Judgments (Michael A. Gross, J.), rendered January 13, 2015, convicting defendant, upon his pleas of guilty, of conspiracy in the second degree, grand larceny in the third degree, failure to disclose the origin of a recording in the first degree, reckless endangerment in the second degree, official misconduct and obstructing governmental administration in the second degree, and sentencing him to concurrent terms of three to nine years, one to three years, one to three years, and one year, one year and one year, unanimously affirmed.
There was legally insufficient evidence of force to support the conviction for attempted second-degree robbery. When defendant, a corrupt police officer, threatened to make an arrest, there was no actual or threatened physical contact, and the element of force was not established under the principles set forth in People v. Smith , 22 N.Y.3d 1092, 982 N.Y.S.2d 437, 5 N.E.3d 584 [2014]. However, the evidence established attempted petit larceny, which qualifies as a lesser included offense under the impossibility test of People v. Glover , 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982], and we reduce the conviction and sentence accordingly.
We reject defendant's arguments concerning the sufficiency and weight of the evidence supporting his attempted possession of a controlled substance conviction (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The evidence supports an inference that defendant believed he was transporting a large quantity of heroin, as planned, rather than making a "dry run" without drugs.
Defendant's challenge under People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] to what was originally his attempted robbery conviction is unavailing. There was no mode of proceedings error, because the court read the jury note in question into the record almost verbatim (see People v. Ramirez, 60 A.D.3d 560, 561, 875 N.Y.S.2d 482 [1st Dept. 2009], affd 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ).
The court that presided over pretrial matters providently exercised its discretion when it removed defendant's counsel (see generally People v. Watson, 26 N.Y.3d 620, 624, 26 N.Y.S.3d 504, 46 N.E.3d 1057 [2016] ). A court's "discretion is especially broad when the defendant's actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review" (see People v. Tineo, 64 N.Y.2d 531, 536, 490 N.Y.S.2d 159, 479 N.E.2d 795 [1985] ). Here, the totality of circumstances created a conflict that was too serious to be addressed by asking defendant whether he wanted to waive the conflict, and inquiring further. In the first place, the People had represented that the attorney at issue was a witness to material nonprivileged matters regarding defendant's indictment for conspiring to kill one of the witnesses in the instant case, and that she would be called as a witness against her then-client, at least in the conspiracy case. After the court removed the attorney at issue from the conspiracy case (which ultimately resulted in one of the plea convictions presently on appeal), it came to light that the attorney was under investigation for misconduct relating to the instant case. Accordingly, the court providently replaced this attorney with the attorney who had been substituted on the conspiracy case. In any event, defendant ultimately expressed his approval of this outcome.
Except, as noted, in connection with our reduction of one of the felony convictions to a misdemeanor, we perceive no basis for reducing the sentences.