| People v Woodring |
| 2008 NY Slip Op 01234 [48 AD3d 1273] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrianWoodring, Appellant. |
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Appeal from a judgment of the Allegany County Court (James E. Euken, J.), rendered July 7,2006. The judgment convicted defendant, upon jury verdicts, of promoting a sexual performanceby a child, endangering the welfare of a child, criminal possession of stolen property in the fourthdegree, grand larceny in the fourth degree and burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: County Court granted that part of defendant's omnibus motion to sever thefirst two counts of the indictment from the remaining counts for trial, and defendant appeals froma judgment convicting him following two jury trials of, inter alia, promoting a sexualperformance by a child (Penal Law § 263.15) and burglary in the third degree (§140.20). Contrary to defendant's contention, the court did not improvidently exercise itsdiscretion in denying trial counsel's motion to withdraw as defendant's attorney. In support of themotion to withdraw, defendant's attorney stated that defendant had not been returning histelephone calls and had refused to accept several plea offers, and he stated that defendant's familyhad "exhausted" their financial resources and could no longer afford to pay him. Defendant statedin response that he wanted his attorney to continue to represent him and that he "somehow"would find the money to pay him. The failure to return telephone calls does not warrantwithdrawal from representation because that failure does not by itself "render[ ] it unreasonablydifficult for the lawyer to carry out employment effectively" (Code of Professional ResponsibilityDR 2-110 [c] [1] [iv] [22 NYCRR 1200.15 (c) (1) (iv)]), and it is beyond dispute that an attorneyis not entitled to withdraw as counsel based on the decision of a defendant to exercise his or herright to trial. Finally, the alleged inability to pay for trial counsel's services does not entitle trialcounsel to withdraw as defendant's attorney, particularly in view of the statement of defendantthat he would somehow find more money in order to pay his attorney. On the record before us,we conclude that the court properly "balance[d] the need for the expeditious and orderlyadministration of justice against the legitimate concerns of counsel" (People v Xadi Fen,192 Misc 2d 788, 790 [2002]; see generally DR 2-110 [c] [22 NYCRR 1200.15 (c)]).Contrary to defendant's further contention, there is no indication in the record that trial counseleither expedited the case to the detriment of defendant or failed to provide effective assistance ofcounsel following the denial of his motion to withdraw (see generally People v Smith, 11 AD3d 899, 900-901 [2004], lvdenied 3 NY3d 761 [2004]).
We reject defendant's contention that the information in support of the search warrant [*2]application was stale. "There is no outside time limitationapplicable to the use of information that leads to the issuance of a search warrant" (People v Coleman, 26 AD3d 773,774 [2006], lv denied 7 NY3d 754 [2006]; see also People v Park, 266 AD2d913, 914 [1999]). Rather, " '[i]nformation may be acted upon so long as the practicalities dictatethat a state of facts existing in the past, which is sufficient to give rise to probable cause,continues to exist at the time the application for a search warrant is made' " (People vBryan, 191 AD2d 1029, 1030 [1993], lv denied 82 NY2d 714 [1993]). Here, thesupporting deposition of the identified informant indicated that he observed the stolen computerequipment at defendant's house "a short time" after defendant was arrested for breaking into aschool. Although the informant did not provide a precise date, he further stated in his supportingdeposition that, at that time, defendant "still ha[d] all the stuff . . . at his house."Viewing that evidence in light of defendant's criminal history, we conclude that those facts"adequately established probable cause justifying the search of defendant's residence" (People v Church, 31 AD3d 892,894 [2006], lv denied 7 NY3d 866 [2006]; see People v White, 258 AD2d 677[1999]; see also Park, 266 AD2d at 914). Defendant's further contention that the searchwarrant was issued without probable cause because the application relied upon hearsay evidencefrom an unreliable identified informant is unpreserved for our review (see CPL 470.05[2]; see also People v Parris, 83 NY2d 342, 351 [1994]; People v Phillips, 225AD2d 1043, 1044 [1996]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant failed to move for a trial order of dismissal and thus failed to preserve for ourreview his contention that the evidence is legally insufficient to support the conviction ofpromoting a sexual performance by a child (see People v Gray, 86 NY2d 10, 19[1995]). We reject the further contention of defendant that the verdict convicting him ofthat crime is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The jury in the first trial had the opportunity to view the video createdby defendant, and its determination that the video depicted defendant simulating an act of oralsexual conduct with the victim is supported by the record (see People v Foley, 257 AD2d243, 253-254 [1999], affd 94 NY2d 668 [2000], cert denied 531 US 875 [2000]).Contrary to defendant's remaining contention, the prosecutor's instructions to the grand jurywere "not so misleading or incomplete that the integrity of the proceedings was substantiallyundermined" (People v Wooten, 283 AD2d 931, 932 [2001], lv denied 96 NY2d943 [2001]). It is well settled that it is "sufficient if the District Attorney provides the Grand Jurywith enough information to enable it intelligently to decide whether a crime has been committedand to determine whether there exists legally sufficient evidence to establish the materialelements of the crime" (People v Calbud, Inc., 49 NY2d 389, 394-395 [1980]). "The testis whether the instructions were so deficient as to impair the integrity of the Grand Jury'sdeliberations" (People v Cannon, 210 AD2d 764, 766 [1994]). Here, the prosecutor'sfailure to instruct the grand jury on the statutory definition of the term "oral sexual conduct" doesnot warrant dismissal of the count charging defendant with promoting a sexual performance by achild. The statutory definition of that term is not technical and reflects a lay person's commonunderstanding of the term. Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.