| People v Eberhart |
| 2008 NY Slip Op 01457 [48 AD3d 898] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesEberhart, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Ulster County (LaBuda, J.),rendered October 19, 2005, upon a verdict convicting defendant of two counts of the crime ofattempted robbery in the third degree.
In August 2004, defendant forced his way into the car of the 78-year-old victim, who wasgetting into the vehicle after stopping to buy groceries on her way home from a weekly bingogame in the Village of Ellenville, Ulster County. Defendant then struggled with the victim forseveral minutes and ultimately succeeded in prying her car keys from her hand. The victim beganto scream and sound her vehicle's horn, causing defendant and an accomplice standing nearby toflee into an adjacent cornfield when a store employee came out to investigate. As he was running,defendant threw the victim's car keys to the ground. Police, searching an area of nearby brambles,later found defendant and his accomplice, who were each curled up into a ball and hiding beneathbushes.
Thereafter, defendant was charged in an indictment with two counts of attempted robbery inthe second degree. Following a jury trial, he was found guilty of attempted robbery in the thirddegree (two counts), which was charged as a lesser included offense. He was sentenced, as apersistent felony offender, to 25 years to life in prison. Defendant appeals and we now affirm.[*2]
Initially, we note that defendant's constitutional challengeto the statutory procedure pursuant to which he was adjudicated a persistent felony offender(see Penal Law § 70.10; CPL 400.20) is unpreserved for our review (see People v Jackson, 46 AD3d1110, 1111 [2007]; see also Peoplev Rivera, 9 NY3d 904, 905 [2007]; People v Daniels, 5 NY3d 738, 740 [2005], cert denied 546US 988 [2005]). Inasmuch as this Court is bound by the Court of Appeals decision in People v Rivera (5 NY3d 61,66-68 [2005], cert denied 546 US 984 [2005]) rejecting the same argument on the merits,reversal in the interest of justice is not warranted (see People v Jackson, 46 AD3d at1111; see also People v Pelkey, 27AD3d 785, 785 [2006], lv denied 7 NY3d 761 [2006]; People v Bingham, 24 AD3d1016, 1017 [2005], lv denied 6 NY3d 831 [2006]). With respect to defendant'sassertion that he was convicted under a theory that varied from the allegations in the indictmentbecause the jury found him guilty of attempted robbery in the third degree when the indictmentcharged attempted robbery in the second degree, his argument is more properly characterized as achallenge to the propriety of County Court charging attempted robbery in the third degree as alesser included offense. That challenge to the jury charge, along with defendant's relatedcontentions that the evidence was legally insufficient to support his convictions of attemptedrobbery in the third degree, is also unpreserved for our review (see CPL 300.50 [1];People v Gray, 86 NY2d 10, 19 [1995]; People v Ford, 62 NY2d 275, 281-283[1984]), and we decline to reverse in the interest of justice on either issue.
Finally, we reject defendant's sole preserved argument that County Court abused itsdiscretion in refusing to adjourn the proceedings after appointing new counsel, at defendant'srequest, on the eve of trial. "Although a defendant has the constitutionally guaranteed right to bedefended by counsel of his [or her] own choosing, this right is qualified in the sense that adefendant may not employ such right as a means to delay judicial proceedings" (People vArroyave, 49 NY2d 264, 271 [1980]). Here, although County Court stated that prior counselwas experienced and knowledgeable and had represented defendant competently andaggressively in the proceedings until that point, the court granted defendant's request forsubstitution of counsel in the face of defendant's threat to absent himself from all courtproceedings if prior counsel continued to represent him. New counsel then had four days toprepare for trial, and defendant concedes that the short notice did not affect counsel'sperformance at trial. Under these circumstances, "County Court struck a 'reasonable balancebetween defendant's right to be represented by counsel of his own choice and the need to guardagainst unwarranted delay occasioned by . . . [the] request for substitution' " (People v Goldston, 34 AD3d 922,923 [2006], lv denied 8 NY3d 846 [2007] [citation omitted]; see People v Swaby,179 AD2d 793, 793 [1992]).
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.