Opinion
1040 KA 18-01776
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Vernon ROBERTS, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND OGDEN, 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 burglary in the second degree ( Penal Law § 140.25 [2] ). Defendant contends that he is entitled to a new trial because County Court failed to address a potential taint of the jury pool after certain comments were made by a prospective juror. Although, as defendant correctly concedes, he failed to preserve that contention for our review (see CPL 470.05 [2] ; People v. Rosario , 184 A.D.3d 676, 677, 123 N.Y.S.3d 503 [2d Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 371, 152 N.E.3d 1173 [2020] ; People v. Owens , 288 A.D.2d 930, 930, 732 N.Y.S.2d 386 [4th Dept. 2001], lv denied 97 N.Y.2d 707, 739 N.Y.S.2d 108, 765 N.E.2d 311 [2002] ), we exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). After the prospective juror was excused, defendant did not seek any relief from the court with respect to the purportedly tainted panel and instead "participated in ... jury selection, during which time the prospective jurors were thoroughly questioned on their ... potential biases, and [defendant] acquiesced to the selected jurors being sworn without objection" ( People v. Hassan , 159 A.D.3d 1390, 1390, 73 N.Y.S.3d 313 [4th Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018]). Consequently, "the impartiality of the jurors ultimately chosen to serve was assured by the conduct of the selection process" ( People v. Pepper , 59 N.Y.2d 353, 358, 465 N.Y.S.2d 850, 452 N.E.2d 1178 [1983] ).
Contrary to defendant's further contention, the court did not abuse its discretion in declining to appoint standby counsel after granting defendant's request to represent himself at trial (see People v. Coffee , 151 A.D.3d 1837, 1838, 58 N.Y.S.3d 777 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). It is well settled that while the United States and New York State Constitutions "afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both. These are ‘separate rights depicted on the opposite sides of the same [constitutional] coin. To choose one obviously means to forego the other’ ... Thus, a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial" ( People v. Rodriguez , 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ; see People v. Brown , 6 A.D.3d 1125, 1126, 776 N.Y.S.2d 408 [4th Dept. 2004], lv denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 [2004] ).
We reject defendant's contention that the police officer who arrested him had stopped him and frisked him in violation of his constitutional rights, and we reject his further contention that the court erred in refusing to suppress the evidence that the officer seized from defendant. To the contrary, we conclude that, based upon the totality of the circumstances, the officer was justified in forcibly detaining defendant momentarily in order to confirm or dispel the officer's reasonable suspicion of defendant's involvement in the reported incident (see People v. Pruitt , 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018]; People v. Carson , 122 A.D.3d 1391, 1391-1392, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ; People v. Evans , 34 A.D.3d 1301, 1302, 825 N.Y.S.2d 617 [4th Dept. 2006], lv denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796 [2007] ).
Moreover, contrary to defendant's contention, the officer was justified in patting defendant down for weapons to ensure officer safety, given the nature of the dispatch as a burglary, the presence of defendant near the scene, and defendant's inability to explain where he was going to or coming from (see People v. Clinkscales , 83 A.D.3d 1109, 1109, 919 N.Y.S.2d 533 [3d Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ; see generally People v. Mack , 26 N.Y.2d 311, 317, 310 N.Y.S.2d 292, 258 N.E.2d 703 [1970], cert denied 400 U.S. 960, 91 S.Ct. 357, 27 L.Ed.2d 270 [1970] ). In any event, the officer did not seize the items that he removed from defendant's vest pocket at that time; rather, he viewed them to ensure that they were not weapons and then put them back in defendant's pocket. The seizure of the items occurred after the victim identified defendant as the perpetrator of the crime and was a valid seizure incident to defendant's lawful arrest based on probable cause (see generally People v. Muldrow , 222 A.D.2d 1076, 1076, 635 N.Y.S.2d 836 [4th Dept. 1995], lv denied 88 N.Y.2d 882, 645 N.Y.S.2d 457, 668 N.E.2d 428 [1996] ). Contrary to defendant's contention, the showup identification procedure was not unduly suggestive (see People v. Dogan , 154 A.D.3d 1314, 1316, 62 N.Y.S.3d 667 [4th Dept. 2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ; People v. Davis , 48 A.D.3d 1120, 1122, 851 N.Y.S.2d 320 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008]), and thus the court properly refused to suppress the identification testimony of the victim.
We reject defendant's contention that the evidence is legally insufficient to support the conviction. Viewing the evidence in the light most favorable to the People (see People v. Hines , 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), we conclude that there is a valid line of reasoning and permissible inferences that could lead the jury to conclude that defendant entered the victim's house with the intent to steal property (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 crime 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] ), including the evidence that defendant was found in spatial and temporal proximity to the crime scene and that he possessed items stolen from the victim, we conclude that the verdict is not 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 failed to preserve for our review his further contention that the court penalized him for exercising his right to a trial (see People v. Shay , 85 A.D.3d 1708, 1709, 925 N.Y.S.2d 789 [4th Dept. 2011], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). In any event, that contention is without merit (see People v. Jurjens , 291 A.D.2d 839, 840, 737 N.Y.S.2d 891 [4th Dept. 2002], lv denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614 [2002] ). Finally, the sentence is not unduly harsh or severe.