| People v Danvers |
| 2009 NY Slip Op 01158 [59 AD3d 229] |
| February 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Danvers, Appellant. The People of the State of New York,Respondent, v Alvin Washington, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., on speedy trial motions;Edwin Torres, J., at jury trial and sentence), rendered March 27, 2007, convicting defendantAnthony Danvers of coercion in the first degree and criminal possession of a weapon in thesecond degree and sentencing him to concurrent terms of 2
This Court held the appeal in abeyance and remanded the matter to the Supreme Court, NewYork County "to schedule an expeditious hearing with respect to the issue of the knowing andintelligent consent of the respective defendants to joint representation by retained counsel CurtisFarber, including the waiver of any claims regarding potential conflicts of interest" (55 AD3d362 [2008]).
Supreme Court held a hearing, pursuant to People v Gomberg (38 NY2d 307[1975]), on November 13, 2008, during which time the Court explained to both defendants, inthe presence of Mr. Farber, that each was entitled to a separate lawyer on appeal, that the Statewould provide one if a defendant could not afford a lawyer, and that it was possible that theirinterests, defenses, and/or arguments might be different or in conflict. The court was satisfiedthat each defendant knowingly waived his right to separate counsel, and there is no basis tochallenge that finding.
On the merits, to the extent that defendants are challenging the court's Sandovalruling insofar as it permitted the prosecutor to question them about their possession of a quantityof [*2]cocaine recovered from Danvers's apartment, which wasthe location where defendants had taken the victim in this case, we find that this ruling was aproper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Defendants didnot preserve any of their arguments relating to uncharged crimes evidence and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on themerits. In particular, we conclude that evidence of drugs and money found on defendants'persons and in the apartment in question was highly probative of motive in this drug-relatedcrime, and corroborated the victim's testimony as to the events in question (see generallyPeople v Till, 87 NY2d 835 [1995]). The probative value of this evidence outweighed itsprejudicial effect. The court also properly received evidence tending to link certain weapons toeach other, and in turn to defendants.
The court properly exercised its discretion when it precluded defendants from callingDanvers's landlord as a witness, since their offer of proof was insufficient to alert the court to therelevance of the witness's testimony (see People v Arroyo, 77 NY2d 947 [1991]).Initially, we note that this witness was apparently reluctant to appear in court, and there is noindication that defendants ever interviewed him or sought to subpoena him. Although defendantsnow assert that the witness might have been able to shed light on the defense claim that thevictim was not held against her will, that claim is speculative, and is beyond their offer of proof,which was limited to potential testimony that would have been cumulative to that of otherwitnesses or that would have raised a Fourth Amendment issue outside the province of the jury.Since defendants never asserted a constitutional right to call this witness, their presentconstitutional claim is unpreserved (seePeople v Lane, 7 NY3d 888, 889 [2006]), and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits. The court's ruling did notdeprive defendants of a fair trial or their right to present a defense (see Crane vKentucky, 476 US 683, 689-690 [1986]).
The court properly denied defendants' speedy trial motions. The record supports the motioncourt's findings as to excludability with regard to time attributable to motion practice and theabsence of defense counsel. Concur—Mazzarelli, J.P., Friedman, Nardelli and Freedman,JJ.