Opinion
110 KA 18-01270
04-22-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TYRAE TATUM, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered April 23, 2018. The judgment convicted defendant upon a jury verdict of murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree (four counts) and attempted assault in the first degree.
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, inter alia, murder in the second degree (Penal Law § 125.25 [1]), arising from a series of incidents in which shots were fired at several people from the passenger side of a moving vehicle, injuring one person and killing another. The person identified as the shooter is a member of a gang, and the shootings took place in a rival gang's territory. Defendant was apprehended driving the relevant vehicle shortly after the shooting.
On appeal, defendant contends that County Court erred in refusing to substitute counsel in place of his assigned attorney. We reject that contention.
Defendant initially contends that the court failed to conduct the requisite minimal inquiry into his complaints regarding his attorney. It is well settled that "[w]hether counsel is substituted is within the 'discretion and responsibility' of the trial judge..., and a court's duty to consider such a motion is invoked only where a defendant makes a 'seemingly serious request[]'" for substitution (People v Porto, 16 N.Y.3d 93, 99-100 [2010]; see People v Sides, 75 N.Y.2d 822, 824 [1990]; People v Gibson, 126 A.D.3d 1300, 1301 [4th Dept 2015]). Thus, where a defendant makes "specific factual allegations of 'serious complaints about counsel'" (Porto, 16 N.Y.3d at 100; see Gibson, 126 A.D.3d at 1301-1302), "the court must make at least 'some minimal inquiry' to determine whether the defendant's claims are meritorious" (Gibson, 126 A.D.3d at 1302). Upon conducting that inquiry, the court may substitute counsel where good cause is shown (see Porto, 16 N.Y.3d at 100; Sides, 75 N.Y.2d at 824; Gibson, 126 A.D.3d at 1302).
Here, defendant's requests for substitution of counsel were based on conclusory assertions that defense counsel was ineffective, was not adequately presenting defendant's points, and had not spoken to defendant often enough about the case. Those assertions were insufficient to require a further inquiry by the court (see People v Barnes, 156 A.D.3d 1417, 1418 [4th Dept 2017], lv denied 31 N.Y.3d 1078 [2018]; People v Lewicki, 118 A.D.3d 1328, 1329 [4th Dept 2014], lv denied 23 N.Y.3d 1064 [2014]; People v Benson, 265 A.D.2d 814, 814-815 [4th Dept 1999], lv denied 94 N.Y.2d 860 [1999], cert denied 529 U.S. 1076 [2000]). Even assuming, arguendo, that a further inquiry was required, we nevertheless conclude that the court made a sufficient inquiry into defendant's complaints, including those concerning the alleged lack of communication between defendant and defense counsel. The court "repeatedly allowed defendant to air his concerns about defense counsel, and after listening to them reasonably concluded that defendant's vague and generic objections had no merit or substance" (People v Linares, 2 N.Y.3d 507, 511 [2004]), rather they were merely generic complaints concerning strategy or lack of communication with defense counsel (see Barnes, 156 A.D.3d at 1418; People v Larkins, 128 A.D.3d 1436, 1441 [4th Dept 2015], lv denied 27 N.Y.3d 1001 [2016]).
Defendant further contends that the court erred in permitting the People to introduce certain evidence from which the jury could conclude that he was a member of a gang. We reject that contention. It is well settled that "[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity" (People v Dorm, 12 N.Y.3d 16, 19 [2009]; see People v Bailey, 32 N.Y.3d 70, 83 [2018]), and "[e]vidence regarding gang activity can be admitted to provide necessary background, or when it is inextricably interwoven with the charged crimes, or to explain the relationships of the individuals involved" (People v Kims, 24 N.Y.3d 422, 438 [2014] [internal quotation marks omitted]; see Bailey, 32 N.Y.3d at 83). Here, the evidence at issue was admissible to establish motive for the shootings and defendant's relationship with the shooter, and as part of the chain of circumstantial evidence connecting defendant to the crimes. Consequently, the court did not abuse its discretion in concluding that the probative value of the relevant evidence outweighed the potential for undue prejudice (see Bailey, 32 N.Y.3d at 83; People v Hilts, 187 A.D.3d 1408, 1414-1415 [3d Dept 2020], lv denied 36 N.Y.3d 973 [2020]; People v Polk, 84 A.D.2d 943, 945 [4th Dept 1981]). Moreover, "the court's prompt limiting instruction [and subsequent final instruction] ameliorated any prejudice" (People v Emmons, 192 A.D.3d 1658, 1659 [4th Dept 2021], lv denied 37 N.Y.3d 992 [2021]; see People v Gomez, 153 A.D.3d 724, 725 [2d Dept 2017], lv denied 30 N.Y.3d 1060 [2017]; see generally People v Davis, 58 N.Y.2d 1102, 1104 [1983]).
Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.