| People v Goodwine |
| 2007 NY Slip Op 09793 [46 AD3d 702] |
| December 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gregory Goodwine, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered July 28, 2005, convicting him of robbery in the first degree, criminalpossession of a weapon in the third degree, and grand larceny in the fourth degree (two counts),upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that he was deprived of his right to berepresented by counsel of his own choosing. The record reveals that the defendant made aninformed and voluntary decision to relieve his primary counsel and retain co-counsel as his solerepresentative. In addition, the defendant was not deprived of his right to be represented bycounsel of his own choosing by the court's refusal to adjourn the trial. "[A]bsent exigent orcompelling circumstances, a court may, in the exercise of its discretion, deny a defendant'srequest to substitute counsel made on the eve of or during trial if the defendant has been accordeda reasonable opportunity to retain counsel of his own choosing before that time" (People vArroyave, 49 NY2d 264, 271 [1980]; People v Hansen, 37 AD3d 318 [2007]; see People vTaylor, 164 AD2d 953, 955-956 [1990]; People v Tellone, 155 AD2d 631 [1989]).Here, the defendant had ample opportunity to retain counsel of his own choosing before that time(see People v Winslow, 222 AD2d 722 [1995]), or have counsel assigned to him [*2]by the court.
Contrary to the defendant's contentions, the trial court did not err in failing to conduct aGomberg inquiry (see People v Gomberg, 38 NY2d 307 [1975]). The defendantfailed to demonstrate that there existed a conflict of interest which "affected" or "operated on" theconduct of his defense (People v Longtin, 92 NY2d 640, 644-645 [1998]; see Peoplev Smart, 269 AD2d 549 [2000], affd 96 NY2d 793 [2001]; People v Hunt,227 AD2d 568 [1996]).
The defendant received the effective assistance of counsel (see People v Baldi, 54NY2d 137 [1981]). Furthermore, under the circumstances of this case, the trial court properlyprecluded the defendant's expert from testifying.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]) we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, the resolution of issues of credibility isprimarily a matter to be determined by the jury, which saw and heard the witnesses, and itsdetermination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exerciseof our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d at 644-645).
The defendant's contentions regarding the sufficiency of the instructions given to the grandjury are unpreserved for appellate review. Moreover, since the judgment of conviction was basedon legally sufficient evidence, the defendant's challenges to the instructions given to the grandjury are not reviewable on appeal (seePeople v Olson, 35 AD3d 890 [2006], affd 9 NY3d 968 [2007]; People vScoon, 303 AD2d 525 [2003]).
The defendant's contention that the People were required to provide him with notice of theidentification testimony of a store security guard who had observed him around the time of therobbery is unpreserved for appellate review. In any event, this contention is without merit. Sincethere was no previous identification of the defendant by the store security guard, no such noticewas required (see CPL 710.30; People v Soto, 22 AD3d 511 [2005]; People v Romano,282 AD2d 764, 765 [2001], cert denied 535 US 1020 [2002]; People v Belushi,114 AD2d 463 [1985]).
The defendant's right to challenge the court's failure to give an expanded identificationcharge was waived by the withdrawal of his request for such an instruction at trial (see Peoplev Tineo, 232 AD2d 667 [1996]).
The remaining issues raised in the defendant's supplemental pro se brief are without merit.Krausman, J.P., Fisher, Angiolillo and Balkin, JJ., concur.