| People v Swanson |
| 2007 NY Slip Op 07134 [43 AD3d 1331] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JodySwanson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedJune 7, 2005. The judgment convicted defendant, upon a jury verdict, of criminal trespass in thesecond degree, unlawful imprisonment in the second degree, menacing in the second degree,criminal possession of a weapon in the fourth degree and resisting arrest.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, criminal trespass in the second degree (Penal Law § 140.15) and unlawfulimprisonment in the second degree (§ 135.05). Defendant failed to preserve for our reviewhis contention concerning the alleged repugnancy of the verdict based on his acquittal of burglaryinasmuch as he failed to raise that contention before County Court discharged the jury (see People v Carter, 21 AD3d1295, 1296 [2005], affd 7 NY3d 875 [2006]; People v Alfaro, 66 NY2d 985,987 [1985]). Defendant also failed to preserve for our review his contention that the criminaltrespass conviction is not supported by legally sufficient evidence based on the People's failure toestablish that he unlawfully entered or remained in the building. Defendant's motion for a trialorder of dismissal was not " 'specifically directed' at" that alleged deficiency in the evidence(People v Gray, 86 NY2d 10, 19 [1995]). Insofar as defendant preserved for our reviewhis contentions that other parts of the conviction are not supported by legally sufficient evidence,we conclude that those contentions are lacking in merit (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Also contrary to defendant's contention, the verdict is not against theweight of the evidence (see generally id.).
We reject the further contention of defendant that the court violated his right to counsel of hischoosing by disqualifying his original trial attorney. "A lawyer is ethically required to withdrawfrom acting as an advocate if it is obvious that he or she 'may be called as a witness on asignificant issue other than on behalf of the client . . . [and] it is apparent that thetestimony is or may be prejudicial to the client' . . . An attorney also should notcontinue to serve as an advocate when it is obvious that the lawyer will be called as a witness onbehalf of the client" (People v Berroa, 99 NY2d 134, 139-140 [2002]). Theadvocate-witness rule "generally requires the [*2]lawyer towithdraw from employment when it appears that he [or she] . . . will be called totestify regarding a disputed issue of fact" (People v Paperno, 54 NY2d 294, 299-300[1981]). Here, the record establishes that there was a significant possibility that defendant'soriginal trial attorney would be called to testify with respect to a disputed issue of fact and, thus,"[u]nder these circumstances, we conclude that the . . . court did not err orimprovidently exercise its discretion in [sua sponte] disqualifying" him from continuing asdefendant's trial attorney (People v Amato, 173 AD2d 714, 716 [1991], lv denied78 NY2d 919, 961 [1991], cert denied 502 US 1058 [1992]; see People vLimongelli, 156 AD2d 473, 474-475 [1989], lv denied 76 NY2d 894 [1990]).Contrary to defendant's further contention, there is no requirement that the court be certain thatthe attorney will testify at trial before disqualifying him or her (see generally Amato, 173AD2d at 716).
We have considered defendant's remaining contentions and conclude that they either arewithout merit or are moot in light of our determination. Present—Gorski, J.P., Smith,Centra, Fahey and Pine, JJ.