| People v Hutchinson |
| 2008 NY Slip Op 09492 [57 AD3d 1013] |
| December 4, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alton C.Hutchinson, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.), renderedJanuary 20, 2006, upon a verdict convicting defendant of two counts of the crime of assault in thesecond degree.
Defendant was indicted by a Chemung County grand jury on one count of assault in the firstdegree, one count of attempted rape in the first degree and two counts of assault in the second degreein connection with the brutal beating of a female correction counselor employed at the prison wheredefendant was incarcerated. Following a jury trial, defendant was convicted of two counts of assault inthe second degree, and was acquitted of assault in the first degree and attempted rape in the firstdegree. Defendant was subsequently sentenced, as a persistent felony offender, to 25 years to life foreach count, such sentences to run concurrently with each other but consecutive to a prior sentence onunrelated charges. Defendant now appeals and we affirm.
We reject defendant's claims of ineffective assistance of counsel based on conduct that allegedlyoccurred prior to sentencing.[FN1]Some of the conduct about which defendant complains—[*2]such as counsel's failure to instruct defendant on how to properly answercertain questions when testifying during the trial and to properly prepare for the persistent felonyoffender hearing—are not a part of the record and, therefore, are not a proper subject for ourreview on this direct appeal; rather, the appropriate remedy is first by way of a CPL article 440 motion(see People v Cruz, 53 AD3d 986[2008]; People v Douglas, 38 AD3d1063, 1064 [2007], lv denied 9 NY3d 843 [2007]). We have also examined defendant'sclaims with regard to counsel's failure to request an intoxication charge and a missing witness chargeand find them to be unsupported by the record (see Vetere v Garcia, 211 AD2d 631, 632[1995]; Arroyo v City of New York, 171 AD2d 541, 542-543 [1991]). With respect to theremaining claims of ineffective assistance of counsel, defendant has failed " 'to demonstrate the absenceof strategic or other legitimate explanations' for counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709[1988]; see People v Caban, 5 NY3d143, 152 [2005]; People vMadison, 31 AD3d 974, 975 [2006], lv denied 7 NY3d 868 [2006]), or to "'demonstrate that his attorney failed to provide meaningful representation' in light of the circumstances of[this] case, viewed in totality" (People v Madison, 31 AD3d at 975, quoting People vCaban, 5 NY3d at 152; see People v Henry, 95 NY2d 563, 565 [2000]; People vBaldi, 54 NY2d 137, 147 [1981]), particularly in view of defendant's acquittal on two of the topcounts of the indictment.
Likewise, we find no merit to defendant's contention that County Court erred when it consideredand denied his pro se motion to set aside the verdict on the ground of ineffective assistance of counselwithout appointing new representation. It is well settled that a "defendant's right to counsel [is]adversely affected when his [or her] attorney, either voluntarily or at the court's urging, [becomes] awitness against him [or her]" (People v Santana, 156 AD2d 736, 737 [1989]; see People vRozzell, 20 NY2d 712, 713 [1967]; People v Sawyer, 55 AD3d 949, 951 [2008]; People v Mills, 45 AD3d 892,895-896 [2007], lv denied 9 NY3d 1036 [2008]; People v Milazo, 33 AD3d 1060, 1061 [2006], lv denied 8NY3d 883 [2007]). Regardless of the nature of the allegations contained in a pro se motion, defensecounsel has "no duty to support a motion that he [or she] determined to be without merit" (People vJones, 261 AD2d 920, 920 [1999], lv denied 93 NY2d 972 [1999]); a lack of suchsupport does not constitute a position adverse to the client (see People v Vasquez, 70 NY2d1, 4 [1987]).
Here, although defense counsel advised County Court that he was unable to represent defendantwith respect to any contentions of ineffective assistance, counsel made no statements on the recorddisputing those contentions. Since defendant's attorney did not take a position adverse to defendant inhis pro se motion to set aside the verdict, County Court was not required to appoint new counselbefore determining the motion (see People v Vasquez, 70 NY2d at 4; People v Jones,261 AD2d at 920).[FN2]Based on County Court's unique ability to assess the circumstances, including the evidence at trial, wealso find no error in the denial of the motion.
Next, we find that County Court properly sentenced defendant as a persistent felony offender. Therecord evidence established beyond a reasonable doubt that defendant had [*3]previously been convicted of two or more felonies (see PenalLaw § 70.10 [1]); in fact, defendant acknowledged his prior felony convictions and did notallege any constitutional violations relating thereto. In addition, a reading of the record establishes thatCounty Court conducted a proper examination of defendant's "history and character" and "the natureand circumstances of his criminal conduct" (Penal Law § 70.10 [2]) and made the requisitefindings prior to imposing sentence to support the conclusion that the public interest will best be servedby an extended period of incarceration and lifetime supervision (see Penal Law § 70.10[2]; People v Andre, 232 AD2d 884, 885-886 [1996], lv denied 89 NY2d 918[1996]; People v Oliver, 96 AD2d 1104, 1105 [1983], affd 63 NY2d 973 [1984]).
We have considered defendant's remaining contentions and, to the extent that they are preservedfor our review, find them to be unavailing.
Cardona, P.J., Spain, Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: We note that defendant's initialassigned counsel was replaced during pretrial proceedings at defendant's request.
Footnote 2: Notably, there was no request bydefendant for new counsel for purposes of the motion or when counsel continued to represent himduring the immediately ensuing persistent felony offender hearing and sentencing.