Opinion
38 A.D.3d 1339 832 N.Y.S.2d 334 The People of the State of New York, Respondent v. Terrance Washington, Appellant. (Appeal No. 1.) 2007-02351 Supreme Court of New York, Fourth Department March 16, 2007
COUNSEL
Edward J. Nowak, Public Defender, Rochester (William Clauss of counsel), for defendant-appellant.
Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered July 2, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum:
In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of criminal possession of a weapon in the second degree (Penal Law former § 265.03 [2]) and, in appeal No. 2, he appeals from a judgment convicting him, following the same jury trial, of murder in the second degree (§ 125.25 [1]). The verdict with respect to intentional murder is not against the weight of the evidence (see generally People v Bleakley , 69 N.Y.2d 490, 495 [1987]). The evidence presented at trial establishes that defendant had a motive to kill the victim and that he and a codefendant exited a vehicle with their guns drawn. Defendant shot the victim in the knee, and he and codefendant searched the victim for a gun. According to one of two statements given by defendant to the police, he knew that the codefendant intended to shoot the victim if they found a gun on his person, and defendant gave the gun to the codefendant after finding it on the victim's person. The codefendant then "immediately" shot the victim in the head with a different gun. The jury thus was entitled to credit the theory of the prosecution that defendant shared the intent of his codefendant to kill the victim and intentionally aided him in carrying out that intent, and the jury was entitled to reject the theory of defendant that he was a mere bystander to the codefendant's allegedly spontaneous act of homicide (see People v McKnight , 306 A.D.2d 546 [2003], lv denied 100 N.Y.2d 596 [2003]; People v Johnson , 101 A.D.2d 684 [1984]; see also People v Middleton , 192 A.D.2d 740 [1993], lv denied 83 N.Y.2d 913 [1994]; cf. People v Hayes , 117 A.D.2d 621, 622-623 [1986], lv denied 68 N.Y.2d 668 [1986]).
We further reject defendant's contention that reversal is required based on Supreme Court's failure to make the requisite inquiry with respect to defendant's request for substitution of counsel. The record establishes that the court properly made a "minimal inquiry" to determine whether to grant defendant's request and that defendant was afforded an ample opportunity to present good cause for a substitution but failed to do so (People v Sides , 75 N.Y.2d 822, 825 [1990]; see People v Kearney , 24 A.D.3d 1105, 1107 [2005], lv denied 6 N.Y.3d 814 [2005]; People v Walton , 14 A.D.3d 419, 419-420 [2005], lv denied 5 N.Y.3d 796 [2005]).
Finally, defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the court failed to consider and balance the appropriate Sandoval factors (see People v McMillon , 32 A.D.3d 1300 [2006], lv denied 7 N.Y.3d 903 [2006]; People v Trammell , 28 A.D.3d 1219 [2006], lv denied 7 N.Y.3d 795 [2006]). In any event, defendant's contention lacks merit (see People v Tirado , 19 A.D.3d 712, 713 [2005], lv denied 5 N.Y.3d 810 [2005]).
Present--Gorski, J.P., Martoche, Smith, Lunn and Pine, JJ.