| People v Ivery |
| 2011 NY Slip Op 00103 [80 AD3d 874] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dwayne Ivery,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered April 17, 2008, upon a verdict convicting defendant of the crimes of grand larceny inthe fourth degree and petit larceny.
As a result of the theft of a casino card from Nancy McSorley and a credit card from RonnieMuscio while those individuals were shopping in a grocery store, defendant and his wife, FrancisDavis-Ivery, were indicted on various charges, and defendant was ultimately convicted of grandlarceny in the fourth degree and petit larceny. Defendant contends that his convictions are againstthe weight of the evidence.[FN*]To that end, where, as here, a different verdict would not have been unreasonable, we must "'weigh the relative probative force of conflicting testimony [*2]and the relative strength of conflicting inferences that may be drawnfrom the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting Peopleex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).
Initially, while defendant is correct that there was no direct evidence that defendant actuallystole either item, we note that the People were required to demonstrate only that defendant actedas an accomplice to Davis-Ivery (see Penal Law §§ 20.00, 155.25, 155.30[4]). In that regard, the People introduced videotape surveillance footage that showed thatdefendant was standing next to Davis-Ivery when she removed an item that appears to be a walletfrom Muscio's purse and which later depicted defendant helping his wife when she later replacedthe item in Muscio's purse. The grocery store's security manager testified that he observed theevents depicted on the videotape and confronted defendant and Davis-Ivery, who pushed pasthim. A police officer testified that, when questioned after his apprehension, defendant deniedknowing Davis-Ivery, and another officer testified that defendant attempted to negotiateconcerning the crimes with which he was going to be charged and to coach Davis-Ivery as towhat to say during her interview. Finally, the evidence showed that defendant was standing nextto Davis-Ivery when she "moved" into McSorley several times in an aisle and reached toward hereach time, and McSorley's casino card was ultimately found in defendant's possession. Viewingthis evidence in a neutral light, and according deference to the jury's credibility determinations,we find that the verdict is supported by the weight of the evidence (see People vBleakley, 69 NY2d at 495).
Defendant's remaining contentions are likewise without merit. Because the People offeredboth direct and circumstantial evidence of defendant's guilt, County Court properly administeredto the jury a partial circumstantial evidence charge with respect to the fourth degree grand larcenycount (see People v Daddona, 81 NY2d 990, 992 [1993]; People v Varmette, 70 AD3d1167, 1171 [2010], lv denied 14 NY3d 845 [2010]). Finally, defendant alleges thathe received ineffective assistance of standby counsel because counsel did not call Davis-Ivery asa witness or interject during the jury charge conference. The record reflects that defendant wasassigned substitute counsel after he complained about the services of his first assigned counsel;he then complained about the services of the substitute counsel. When County Court refused toassign a third attorney to him, defendant chose to proceed pro se. The court instructed assignedcounsel to remain as standby counsel to provide defendant with "legal advice as to how to framemotions and frame questions and give him procedural advice as to how the trial [would]proceed." Having elected to proceed pro se, defendant waived his constitutional right to havecounsel conduct the trial on his behalf and he may not now argue that his standby counsel wasineffective by failing to mount a defense and negotiate the jury charges (see People vBrockenshire, 245 AD2d 1065, 1066 [1997], lv denied 91 NY2d 940 [1998]; seegenerally People v Rodriguez, 95 NY2d 497, 501-502 [2000]).
Cardona, P.J., Mercure, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To the extent that defendant alsoclaims that the convictions are not supported by legally sufficient evidence, such claim was notproperly preserved for appellate review. Nonetheless, we necessarily evaluate the sufficiency ofthe evidence regarding each element of the crimes charged as part of the weight of the evidencereview (see People v Brisson, 68AD3d 1544, 1546 [2009], lv denied 14 NY3d 798 [2010]).