| People v Covington |
| 2007 NY Slip Op 07915 [44 AD3d 510] |
| October 23, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronnie Covington, Appellant. |
—[*1] Ronnie Covington, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., on pretrial motions; JohnA.K. Bradley, J., at suppression hearing; Richard D. Carruthers, J., at jury trial and sentence),rendered July 6, 2004, convicting defendant of robbery in the second degree (two counts),criminal usury in the first degree (six counts), criminal use of public benefit cards in the seconddegree (three counts), criminal possession of public benefit cards in the third degree and assaultin the third degree, and sentencing defendant, as a second felony offender, to an aggregate termof 22½ to 30 years, and order, same court (Richard D. Carruthers, J.), entered on or aboutSeptember 23, 2004, which denied defendant's CPL 440.10 and 440.20 motions to vacate thejudgment and set aside sentence, unanimously affirmed.
The court properly denied defendant's CPL 330.30 (2) motion to set aside the verdict,without granting a hearing. Defendant based his juror misconduct claim on a belated hearsaystatement from an attorney who overheard a conversation, two weeks earlier, allegedly relating todefendant's trial, which was then in progress. The allegations of premature discussion of the casewere not supported with a sworn affidavit or affirmation from anyone, and hearsay statementswill not suffice (see People v Friedgood, 58 NY2d 467, 473 [1983]; People v Comfort, 30 AD3d 1069[2006], lv denied 7 NY3d 787 [2006]; People v Salaam, 187 AD2d 363, 364-365[1992], affd 83 NY2d 51 [1993]). Nor do the hearsay statements establish how the fellowattorney knew that the people allegedly discussing the case were jurors instead of spectators. Inany event, "not every misstep by a juror rises to the inherently prejudicial level at which reversalis required automatically" (People v Brown, 48 NY2d 388, 394 [1979]), and defendant'sallegations did not demonstrate that the alleged misconduct deprived him of a fair trial (seePeople v Horney, 112 AD2d 841 [1985], lv denied 66 NY2d 615 [1985]).
The court properly exercised its discretion when it denied an application to relieve counselmade, during trial, by both [*2]defendant and his attorney (seePeople v Sawyer, 57 NY2d 12, 19 [1982], cert denied 459 US 1178 [1983];People v Medina, 44 NY2d 199, 207-209 [1978]; People v Smith, 192 AD2d310, 312 [1993], affd 82 NY2d 731 [1993]). The essential basis for the application was astrategic difference between defendant and his attorney, who reasonably refused to pursuedemonstrably futile lines of defense requested by his client, and this was not the kind offundamental conflict that would require new counsel (see People v Davis, 270 AD2d 162[2000], lv denied 95 NY2d 795 [2000]).
Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). Counsel's admittedly "risky" decision to call a witnesswho had expressed hostility to defendant was appropriate, because the witness could havereasonably been expected to provide valuable exculpatory testimony (see People v Brito,304 AD2d 320, 321 [2003], lv denied 100 NY2d 592 [2003]). While the witness wasclearly hostile to defendant, counsel could not have anticipated that the witness would not merelybe unhelpful, but would affirmatively inculpate defendant by blatantly lying under oath.Moreover, the record establishes that defendant was fully aware of the risk and approved of thedecision. In any event, even if counsel should not have called this witness, his decision to do sodid not cause defendant any prejudice. The court prevented any prejudice when it gave athorough curative instruction, in which it not only struck the testimony but expressly told the juryto discredit it and draw no adverse inferences against either side. Defendant's remainingineffective assistance claims are without merit.
The grand jury proceedings were not unlawfully defective, and the possession of benefitcards conviction was not unconstitutionally obtained. We have considered and rejecteddefendant's remaining claims, including those contained in his pro se supplemental brief.Concur—Lippman, P.J., Andrias, Williams, Buckley and Malone, JJ.