| People v Jean-Baptiste |
| 2008 NY Slip Op 04884 [51 AD3d 1037] |
| May 27, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Pochly Jean-Baptiste, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos, Elana L. Yeger,and Tina L. Guccione of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.),rendered January 13, 2005, convicting him of murder in the second degree, criminal possessionof a weapon in the second degree, and criminal possession of a weapon in the third degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, he was not deprived of his right to counsel of hischoice or of his right to be present at all material stages of his trial by the trial court's decision todisqualify defense counsel, which allegedly was made outside of his presence. A defendant'sright to counsel of his choice is not absolute and may properly be circumscribed where, as here,defense counsel's continued representation of the defendant would present a clear conflict ofinterest (see People v Jones, 2 AD3d 1397 [2003]; People v Gordon, 272 AD2d133, 134 [2000]; People v King, 248 AD2d 639, 640 [1998]; People v Liuzzo,167 AD2d 963 [1990]; see generally Wheat v United States, 486 US 153, 159[1988]). Furthermore, since defense counsel could not have continued to represent the defendantunder the circumstances of this case, the defendant's presence during any proceeding regardingdisqualification of defense counsel "could not have afforded [the defendant] any meaningfulopportunity to affect the outcome" of the proceeding (see People v Roman, 88 NY2d 18,26 [1996]). Thus, the defendant's presence was not required.
There is no merit to the defendant's contention that the trial court erred in permitting the[*2]prosecution to elicit hearsay testimony from several of theirwitnesses relating to the defendant's motive. This testimony was admissible under the"state-of-mind" exception to the hearsay rule (see People v Casper, 42 AD3d 887 [2007];People v Rose, 41 AD3d 742 [2007]; People v Carrasquillo, 10 AD3d 424, 425[2004]; People v Sawyer, 288 AD2d 73 [2001]). The defendant's contentions regardingother alleged trial errors are also without merit.
Further, resolution of issues of credibility is primarily a matter to be determined by the jury,which saw and heard the witnesses, and its determination should be accorded great deference onappeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factualreview power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Spolzino, J.P., Carni, Dickerson and Eng, JJ., concur.