| People v Keitt |
| 2009 NY Slip Op 01865 [60 AD3d 501] |
| March 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Devin Keitt, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., at initial severancemotion and request for adjournment; William A. Wetzel, J., at renewed severance motion, jurytrial and sentence), rendered April 4, 2006, convicting defendant of robbery in the first degree,robbery in the second degree (two counts), criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree (two counts), and sentencing him, as asecond felony offender, to an aggregate term of 23 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Although the robbery victim did not see the robbers' faces andcould not identify them, there was extensive evidence connecting defendant to the robbery,including, among other things, testimony from a police officer who pursued the robbers from thescene and made a prompt and reliable identification of defendant, as well as testimony from anoccupant of an apartment to which the robbers fled, and where they deposited incriminatingevidence.
The court properly exercised its discretion when it denied defendant's application to proceedpro se, made during the presentation of the People's case, since defendant did not assert anycompelling circumstances or legitimate basis for his belated request (see People vMcIntyre, 36 NY2d 10, 17 [1974]). There is no merit to defendant's argument that he wasconstitutionally entitled to represent himself notwithstanding the fact that the trial had begun.
Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). Defendant was not deprived of effective assistance by hisattorney's failure to seek to introduce expert testimony on identification. The pursuing officeridentified defendant under circumstances that made mistaken identity highly unlikely, and thisidentification was supported by powerful corroborating evidence. Accordingly, there is noreason to believe that an application to call an identification expert would have been successful(see People v LeGrand, 8 NY3d449 [2007]; People v Young, 7NY3d 40, 45-46 [2006]), or that such testimony would have affected the verdict.
In his initial and renewed severance motions, defendant did not establish a sufficient basis[*2]for severance. At the time of these motions, the informationbefore the court concerning the proposed defenses of defendant and his codefendant, includingthe codefendant's attorney's outline of his client's proposed testimony, did not reveal anyirreconcilable conflict (see People v Mahboubian, 74 NY2d 174, 183-184 [1989]). Onappeal, defendant asserts that a particular portion of the codefendant's testimony and summationargument tended to inculpate defendant. Under the circumstances, the prior severance motionsdid not preserve this issue, and a further renewed motion would have been necessary. We declineto review this unpreserved issue in the interest of justice. As an alternative holding, we alsoreject it on the merits, because the defenses of defendant and the codefendant remainedcompatible throughout the trial, and defendant was not prejudiced by the joint trial. A midtrialseverance motion would have been untimely in any event, since specifics as to the allegedlyprejudicial aspect of the codefendant's defense could have been ascertained and presented to thecourt prior to trial (see People vFunches, 4 AD3d 206, 207 [2004], lv denied 3 NY3d 640 [2004]).
The court properly exercised its discretion in denying defendant's request for a one-weekadjournment to consult with a DNA expert. Defense counsel received a suitable opportunity toconsult with his expert before the People's DNA expert testified, and the court's refusal toadjourn the trial did not cause defendant any prejudice (see People v Roberts, 50 AD3d 530 [2008], lv denied 10NY3d 963 [2008]). Furthermore, DNA proof linking defendant to some of the physical evidencewas only a small component of the People's extensive case. Concur—Mazzarelli, J.P.,Andrias, Gonzalez, Moskowitz and Renwick, JJ.