| People v Oshintayo |
| 2018 NY Slip Op 05532 [163 AD3d 1353] |
| July 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Stanley T. Oshintayo, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered March 22, 2016, upon a verdict convicting defendant of the crimes of menacing in thesecond degree, assault in the second degree and resisting arrest.
In February 2015, defendant was charged in a four-count indictment with the crimes ofrobbery in the first degree, menacing in the second degree, assault in the second degree andresisting arrest. These charges stemmed from a late night incident during which defendantengaged in a verbal altercation with one man, threatened the man and his companion withgardening shears, took a wallet and phone from the second man and fought with police officerswhen he was arrested immediately after the incident. In a December 2015 appearance before trial,defendant chose to represent himself and did so throughout the subsequent jury trial. He wasacquitted of robbery in the first degree and was convicted of menacing in the second degree,assault in the second degree and resisting arrest. Defendant was thereafter sentenced, as a secondviolent felony offender, to an aggregate prison term of six years with five years of postreleasesupervision. Defendant appeals.
Defendant first contends that County Court erred in allowing him to proceed pro se.Defendant was initially represented by assigned counsel. During pretrial proceedings, however,defendant expressed his dissatisfaction with counsel and asked that he be replaced. Although adefendant has no choice in selecting assigned counsel, substitution should be made upon a [*2]showing of good cause (see People v Linares, 2 NY3d 507, 510 [2004]). County Courtallowed defendant ample opportunity to identify his concerns with counsel's representation.Defendant professed that he could not trust his counsel, whom he believed was not providingzealous representation. The court noted that counsel was an experienced trial attorney who wascapable of providing defendant with meaningful representation, and the record establishes thatcounsel had made appropriate motions resulting in, among other things, a combinedHuntley and Sandoval hearing at which the court made rulings favorable todefendant. In light of defendant's failure to articulate a specific reason why counsel was unable toprovide him with meaningful assistance, County Court properly denied his request for substitutecounsel (see id. at 510-511).
Defendant then advised County Court that he did not want to be represented at trial by hisoriginally assigned counsel and, inasmuch as his request for substitute counsel had been denied,he desired to represent himself. "A criminal defendant may invoke the right to represent himselfor herself when the request is timely and unequivocal, there has been a knowing and intelligentwaiver of the right to counsel, and the defendant has not engaged in conduct that would interferewith a fair and orderly trial" (People vJackson, 160 AD3d 1125, 1125-1126 [2018] [internal quotation marks, brackets andcitations omitted]). "The waiver element, in turn, requires the trial court to undertake a searchinginquiry geared toward accomplishing the twin goals of adequately warning the defendant of therisks inherent in proceeding pro se, and apprising the defendant of the singular importance of thelawyer in the adversarial system of adjudication. Notably, the focus in a self-representationinquiry is not on how much the defendant knows about criminal law and procedure, becauseignorance does not preclude self-representation. Instead, the principal focus is on warning adefendant that his or her lack of knowledge, relative to that of a lawyer, will be detrimental if thedefendant chooses to waive the right to counsel" (People v Dashnaw, 116 AD3d 1222, 1231 [2014] [internalquotation marks, brackets, emphasis and citations omitted], lv denied 23 NY3d 1019[2014]).
County Court conducted a sufficient inquiry in response to defendant's insistence onproceeding pro se and repeatedly warned him, in detail, of the consequences of waiving the rightto counsel. The court asked defendant a series of questions during which defendant confirmedthat he had never gone to trial in any action or proceeding, criminal or civil, and had no legaltraining. The court explained to defendant the many pitfalls of representing oneself at a criminaltrial, advised him that he would be held to the same standards as an attorney and warned him thatelecting to represent himself at a trial that was scheduled to commence in only 30 days was the"worst decision" he could make. County Court adjourned consideration of defendant's request toallow defendant the opportunity to consider the consequences of proceeding pro se. At anappearance two days later, the court again advised defendant of the advantages that hisexperienced counsel could provide at trial and repeated its warning that it would be a "hugemistake" for him to proceed pro se before ultimately granting his request to represent himself anddismissing counsel. At a subsequent pretrial conference, County Court explained to defendanthow the trial would be conducted and, at defendant's request, reappointed his original counsel asstandby counsel.
Defendant next contends that County Court abused its discretion by not ordering acompetency examination pursuant to CPL 730.30 (1). We disagree. Defendant's stated fear thatcounsel would physically harm or kill him was not a " 'red flag[ ]' that should have putthe court on notice of a severe mental illness" (People v Stone, 22 NY3d 520, 528 [2014]). Rather, such statementswere made in the context of defendant expressing his dissatisfaction with counsel's efforts inlight of the impact that a sentence of 10 to 25 years would have on his life if he were to beconvicted of robbery in the first degree and did not evince a fear that counsel would cause himactual physical harm. Moreover, the record shows that defendant had actively and lucidly [*3]participated in all pretrial proceedings and, as noted by the court,had maintained a properly respectful demeanor at all times. Accordingly, County Court was notrequired to undertake a particularized assessment of defendant's mental capacity before grantinghis request to proceed pro se with standby counsel (see People v Cruz, 131 AD3d 724, 727 [2015], lv denied 26NY3d 1087 [2015]).
Defendant also argues that the verdict was against the weight of the evidence because he wastoo intoxicated to have the requisite intent to commit each of the crimes for which he wasconvicted. Where, as here, a different verdict would not have been unreasonable, we must "weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony. Whether an individual's level of intoxicationnegates the element of intent to commit a crime lies within the domain of the jury as the trier offact" (People v Rolfe, 83 AD3d1217, 1217-1218 [2011] [internal quotation marks and citations omitted], lv denied17 NY3d 809 [2011]). The only evidence that defendant—who did not testify—wasintoxicated was the testimony of David Baer, one of the police officers who arrested defendant,who testified that defendant appeared to be impaired by alcohol. The remaining evidenceestablished that he was not intoxicated and that, even if he were intoxicated, he was not seriouslyimpaired and he remained aware of his intentions (see id. at 1218; People v Scott, 47 AD3d 1016,1018-1019 [2008], lv denied 10 NY3d 870 [2008]; People v Hazen, 20 AD3d 586, 588-589 [2005], lv denied 5NY3d 806 [2005]). The other two police officers who were involved in defendant's arrest andboth victims testified that defendant did not appear to be intoxicated. In particular, police officerReginald Ross testified that he had been trained in detecting intoxication and that whendefendant was arrested he did not exhibit any indications of intoxication—such as slow orslurred speech, bloodshot eyes or the odor of alcohol. Further, defendant's attempt to flee andhide when he observed Baer's patrol car demonstrates that he had the capacity to actintentionally.
Defendant further argues that his conviction of assault in the second degree was notsupported by legally sufficient evidence and was against the weight of the evidence because therewas insufficient evidence of physical injury.[FN*] As relevant here, a person is guilty of assault inthe second degree when he or she, with intent to prevent a police officer from performing alawful duty, causes physical injury to the officer (see Penal Law § 120.05[3]). Physical injury "means impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). "Substantial pain cannot be defined precisely, but it can be said that itis more than slight or trivial pain" (People v Talbott, 158 AD3d 1053, 1054 [2018] [internal quotationmarks, brackets and citation omitted], lv denied 31 NY3d 1088 [2018]). Baer testifiedthat during the struggle with defendant, he felt sharp pains in his knee and ankle, and other lawenforcement officers corroborated his testimony by stating that he limped away from the incident.Baer sought treatment at a hospital. He missed two days of work and, during that time, hecontinued to experience pain and had difficulty walking. Although a different verdict would nothave been unreasonable, Baer's testimony established that he sustained a physical injury and,therefore, the verdict in this regard was not against the weight of the evidence (see id.; People v Sands, 157 AD3d 1136,1137[*4][2018], lv denied 31 NY3d 986 [2018]).
Defendant's remaining arguments do not require extended discussion. His claims that CountyCourt erred by not instructing the jury of the charge of obstructing governmental administrationin the second degree as a lesser included offense of assault in the second degree and of thedefense of intoxication are not preserved for our review because defendant made no objection tothe court's charge (see CPL 470.05 [2]; People v Every, 146 AD3d 1157, 1165 [2017], affd 29NY3d 1103 [2017]). Defendant's claim that he did not receive the effective assistance of counselwhen he was represented by assigned counsel during pretrial proceedings finds no support in therecord, which shows that counsel made appropriate pretrial motions and obtained rulingsfavorable to defendant in preparation for trial (see e.g. People v Stevenson, 58 AD3d 948,949-950 [2009], lv denied 12 NY3d 860 [2009]).
Finally, we reject defendant's claim that the sentence imposed, which was less then themaximum, was harsh and excessive. Defendant identifies no extraordinary circumstances orabuse of discretion that would warrant a reduction of his sentence in the interest of justice (see People v Cole, 150 AD3d1476, 1482 [2017]). Accordingly, the judgment of conviction is in all respects affirmed.
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:By making only a general motionto dismiss at trial, defendant failed to preserve his argument that his assault conviction was notsupported by legally sufficient evidence (see People v Cruz, 131 AD3d at 724). In thatregard, it bears noting that, in representing himself at trial, defendant failed to preserve many ofthe issues that he now seeks to raise on appeal (see e.g. People v Jackson, 160 AD3d at1127).