Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Maurice SINKLER, Defendant–Appellant.
Matthew D. Nafus, Scottsville, for Defendant–Appellant. Maurice Sinkler, Defendant–Appellant Pro Se.
Matthew D. Nafus, Scottsville, for Defendant–Appellant. Maurice Sinkler, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal possession of a weapon in the third degree (§ 265. 02[3] ). Contrary to defendant's contention, Supreme Court properly discharged a sworn juror. A court must discharge a sworn juror who is grossly unqualified to serve in the case, i.e., a juror who “possesses a state of mind which would prevent the rendering of an impartial verdict” (People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [internal quotation marks omitted]; seeCPL 270.35[1] ). The juror here was grossly unqualified inasmuch as she indicated that she was having personal problems at home that prevented her from giving her undivided attention to the case, she had anxiety, and she stated that she could not be fair and impartial ( see People v. Daniels, 59 A.D.3d 730, 730–731, 875 N.Y.S.2d 494, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587; People v. Cook, 275 A.D.2d 1020, 1020–1021, 713 N.Y.S.2d 586, lv. denied95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient with respect to the element of possession in both crimes inasmuch as his motion for a trial order of dismissal was not “specifically directed” at the alleged error now asserted on appeal (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, his contention is without merit inasmuch as defendant admitted in his statement to the police that his codefendant told him that she wanted to rob a store and handed him the handgun after he asked to see it. Contrary to defendant's further contention, 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), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant next contends that the court erred in denying his request to instruct the jury on the defense of temporary innocent possession of the handgun. We reject that contention. That instruction is warranted only where there is “proof in the record showing a legal excuse for [the defendant] having the weapon in his [or her] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372; see People v. Ward, 104 A.D.3d 1323, 1324–1325, 960 N.Y.S.2d 839, lv. denied21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286). Viewing the evidence in the light most favorable to defendant ( see Williams, 50 N.Y.2d at 1044, 431 N.Y.S.2d 698, 409 N.E.2d 1372), we conclude that the jury could not have found that defendant's possession was innocent and, indeed, the evidence “is ‘utterly at odds with ... [a] claim of innocent possession’ ” (People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614, quoting Williams, 50 N.Y.2d at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372). We reject defendant's further contention that the sentence is unduly harsh and severe.
In his pro se supplemental brief, defendant contends that the court failed to make a proper inquiry regarding a conflict with his assigned counsel. We reject that contention. It is well settled that courts must “ ‘carefully evaluate serious complaints about counsel’ ” and should substitute counsel in situations where defendant demonstrates “ ‘good cause,’ ” such as a conflict of interest or other irreconcilable conflict with counsel (People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768; see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Here, when defendant sought to “fire” defense counsel, the court's duty to inquire was not triggered inasmuch as defendant made only “generalized complaints about counsel” (People v. Augustine, 89 A.D.3d 1238, 1240, 932 N.Y.S.2d 247, affd.21 N.Y.3d 949, 969 N.Y.S.2d 849, 991 N.E.2d 707; see Medina, 44 N.Y.2d at 208, 404 N.Y.S.2d 588, 375 N.E.2d 768). It was not until defense counsel received a copy of a complaint sent by defendant to the Grievance Committee approximately two months later that an irreconcilable conflict arose, at which time the court assigned new counsel.
We reject defendant's further contentions in his pro se supplemental brief that the court erred in denying his request to withdraw his waiver of the probable cause and Huntley hearings and that defense counsel was ineffective for allowing him to waive those hearings. The record establishes that the waiver was made knowingly, voluntarily, and intelligently ( see People v. Boyd, 27 A.D.3d 1124, 1124, 812 N.Y.S.2d 206, lv. denied7 N.Y.3d 752, 819 N.Y.S.2d 878, 853 N.E.2d 249; People v. Ford, 249 A.D.2d 978, 978, 672 N.Y.S.2d 199, lv. denied92 N.Y.2d 924, 680 N.Y.S.2d 466, 703 N.E.2d 278), and defendant failed “to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's waiver of those hearings (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; see People v. Dennis, 206 A.D.2d 843, 844, 616 N.Y.S.2d 121, lv. denied84 N.Y.2d 867, 618 N.Y.S.2d 12, 642 N.E.2d 331; People v. Flemming, 191 A.D.2d 987, 988, 594 N.Y.S.2d 940, lv. denied82 N.Y.2d 717, 602 N.Y.S.2d 814, 622 N.E.2d 315; People v. Brown, 122 A.D.2d 546, 546, 505 N.Y.S.2d 474, lv. denied68 N.Y.2d 810, 507 N.Y.S.2d 1027, 499 N.E.2d 876).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.