| People v Rufus |
| 2008 NY Slip Op 08828 [56 AD3d 1175] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lester R.Rufus, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedAugust 19, 2004. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [former (2)]). Contrary to defendant's contention,the verdict is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The testimony of the People's witnesses was not " 'so unworthy of beliefas to be incredible as a matter of law' . . . and thus it cannot be said that the juryfailed to give the evidence the weight it should be accorded" (People v Woods, 26 AD3d 818, 819 [2006], lv denied 7NY3d 765 [2006]; see generally Bleakley, 69 NY2d at 495). Contrary to the furthercontention of defendant, County Court did not err in relieving his first and second attorneys fromtheir representation of him. The court relieved defendant's first attorney of his representation ofdefendant after learning that the attorney was representing another defendant who had given astatement implicating defendant in this case. Under the circumstances, the "continuedrepresentation of defendant by [the first] attorney would create an actual conflict of interest aswell as a likelihood of violating the 'advocate-witness' and 'unsworn witness' rules. . . , and that waiver of conflict-free representation would not cure these defects"(People v Gordon, 272 AD2d 133, 134 [2000], lv denied 95 NY2d 890 [2000];see People v Jones, 2 AD3d1397, 1398-1399 [2003], lv denied 2 NY3d 742 [2004]; People v Blaylock,266 AD2d 400 [1999], lv denied 94 NY2d 877 [2000]). With respect to the secondattorney, the record establishes that defendant asked the court to discharge that attorney, and thusdefendant will not be heard to contend that the court erred in doing so.
Finally, defendant failed to move to disqualify certain sworn jurors as grossly unqualified toserve and failed to object to the court's inquiry of those jurors. Defendant thus failed to preservefor our review his contention that the court should have discharged those jurors (see People v Clark, 28 AD3d 1190[2006]; People v Haberer, 24 AD3d1283, 1284 [2005], lv denied 7 NY3d 756, 848 [2006]; People v Wright, 16 AD3d 1113[2005], lv denied 4 NY3d 857 [2005]), and we decline to exercise our [*2]power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Present—Martoche, J.P., Smith,Centra, Peradotto and Pine, JJ.