| People v Breedlove |
| 2009 NY Slip Op 02689 [61 AD3d 1120] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyBreedlove, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered March 14, 2008, upon a verdict convicting defendant of the crime ofpromoting prison contraband in the first degree.
Defendant, a prison inmate, was charged in an indictment with one count of promotingprison contraband in the first degree arising out of an incident at the Great Meadow CorrectionalFacility in Washington County wherein he was found in possession of a razor blade. After hisrequest for new assigned counsel was denied and following proper warnings by County Court,defendant elected to represent himself at the ensuing jury trial. At trial, it was establishedthrough the testimony of two correction officers and a correction sergeant that defendant set offtwo separate metal detectors at the facility—one of which was specifically designed todetect contraband inside a body cavity—thus prompting a strip search. During the stripsearch, according to the People's witnesses, a tissue fell out of defendant's buttocks. Inside thetissue was a razor blade wrapped in electrical tape.
Defendant took the stand in his own defense and denied that he set off any metal detector onthe day in question or that he was in possession of a razor blade. Found guilty as charged by thejury, he was sentenced, as a second felony offender, to 2½ to 5 years in prison, to [*2]run consecutively to the sentence he was then serving, and fined$2,000. He now appeals.
Defendant first argues that the verdict is against the weight of the evidence. This argument ispremised on defendant's assertion that his version of events and testimony was more crediblethan that of the two correction officers and correction sergeant who testified on behalf of thePeople. According to defendant, these witnesses' testimony was "incredible" and "specious" andthe entire incident as described by them was "fabricated." According due deference to the jury'sfirst-hand ability to evaluate the conflicting accounts of the incident and to assess witnesscredibility, we find no reason to disagree with its decision to accept the testimony of the People'switnesses and disregard that of defendant (see People v Watkins, 49 AD3d 908, 908-909 [2008], lvdenied 10 NY3d 965 [2008]; People v Callender, 48 AD3d 976, 977-978 [2008], lvdenied 10 NY3d 860 [2008]; People v Montgomery, 8 AD3d 881, 882 [2004], lv denied3 NY3d 678 [2004]; see also Penal Law § 205.25 [2]). In short, upon the exerciseof our factual review power, we are satisfied that the verdict is not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant next argues that County Court erred in denying his motion for substitute counseland further that he received ineffective assistance from his assigned counsel. The record revealsthat defendant's assigned counsel made appropriate pretrial motions, successfully obtainedsuppression of his oral statement to one of the correction officers[FN*]and secured a favorable plea deal. The record does not substantiate defendant's allegations thathis assigned counsel was unprepared, did not have defendant's "best interest at heart" or failed toprocure relevant documents pertinent to his defense. As defendant failed to make the requisiteshowing of "good cause for a substitution" (People v Sides, 75 NY2d 822, 824 [1990][internal quotation marks and citation omitted]), County Court did not abuse its discretion indenying the request. Moreover, we find that defendant received meaningful representation(see People v Baldi, 54 NY2d 137, 146-147 [1981]).
Next, we are unpersuaded by defendant's assertion that County Court erred in allowing thePeople to cross-examine him about his oral statement to the correction officer (see n,supra). Defendant's testimony on direct examination denying that he possessed a weaponthat day opened the door for such cross-examination (see People v Wise, 46 NY2d 321,324 [1978]; People v Callender, 48 AD3d at 977; People v Greene, 306 AD2d639, 641-642 [2003], lv denied 100 NY2d 594 [2003]). Defendant further claims thatCounty Court erred in also permitting the People to cross-examine him about an additional oraladmission to the correction sergeant because the People failed to provide CPL 710.30 notice ofthis particular statement. Inasmuch as defendant did not object to this questioning, County Courthad no occasion to rule on its propriety, thus rendering the issue unpreserved for our review(see CPL 470.05 [2]; see also People v McCullough, 278 AD2d 915, 916 [2000],lv denied 96 NY2d 803 [2001]). Moreover, permitting this line of questioning duringcross-examination was not in error despite [*3]the lack of CPL710.30 notice (see People v Goodson, 57 NY2d 828, 829-830 [1982]; People v Lopez, 9 AD3d 692, 693[2004]; People v Spinks, 205 AD2d 842, 844 [1994], lv denied 84 NY2d 833[1994]; People v Van Skiver, 111 AD2d 1032, 1034-1035 [1985]; see also People v Varela, 22 AD3d264, 265 [2005], lv denied 6 NY3d 781 [2006]; People v Sanzotta, 191AD2d 1032 [1993]; People v Connor, 157 AD2d 739, 740 [1990], lv denied 76NY2d 732 [1990]). Even assuming an error, it was nevertheless harmless in light of theoverwhelming evidence of defendant's guilt.
Finally, given defendant's lengthy criminal history, we reject his contention that he shouldhave received the minimum sentence of 2 to 4 years (see People v Montgomery, 8 AD3dat 883). We see no abuse of discretion or extraordinary circumstances warranting modification ofany aspect of his sentence (see People vCarralero, 9 AD3d 790, 792 [2004], lv denied 4 NY3d 742 [2004]), includingthe monetary fine imposed.
Cardona, P.J., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: According to testimony at aHuntley hearing, after setting off the metal detectors, defendant was escorted to a roomto be strip searched. On route to this room, he was asked by the escorting correction officer "ifhe had anything on him" to which he responded that "he had a razor between his buttocks."County Court suppressed this statement because defendant was not provided Mirandawarnings.