| People v Kobza |
| 2009 NY Slip Op 06948 [66 AD3d 1387] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Kobza,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Paul J. Williams, III, of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered September 11, 2007. The judgment convicted defendant, after a jury trial, of course ofsexual conduct against a child in the first degree (two counts), rape in the first degree andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]) and one count of rape in the first degree (§ 130.35 [4]). We rejectthe contention of defendant that Supreme Court erred in refusing to suppress two incriminatingletters that the police found in a hotel room. Defendant had the burden of establishing that he hada legitimate expectation of privacy in the hotel room that was searched by the police (seePeople v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]), and he failed to meet that burden.Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his[legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of thehotel had the authority to consent to the search" by the police (People v D'Antuono, 306AD2d 890 [2003], lv denied 100 NY2d 593, 641 [2003]). That search was not renderedillegal by the fact that defendant's tenancy expired while defendant was detained after havingbeen arrested. The officer who conducted the search relied in good faith on the apparentauthority of the hotel owner to consent to the search, "and the circumstances reasonablyindicated that [the hotel owner] had the requisite authority to consent to the search" (People v Fontaine, 27 AD3d1144, 1145 [2006], lv denied 6 NY3d 847 [2006]). The officer who conducted thesearch was not required to inquire whether defendant was in police custody at that time becausethe officer was not "faced with a situation [that] would cause a reasonable person to question theconsenting party's power or control over the premises" to be searched (People v Adams,53 NY2d 1, 10 [1981], rearg denied 54 NY2d 832 [1981], cert denied 454 US854 [1981]). Defendant failed to preserve for our review his further contention that the first twocounts of the indictment, which allege course of sexual conduct against a child, aremultiplicitous (see People vThompson, 34 AD3d 931, 932 [2006], lv denied 7 NY3d 929 [2006]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
We reject the contention of defendant that the court erred in refusing to allow him to [*2]substitute assigned counsel. "The decision to allow a defendant tosubstitute counsel is largely within the discretion of the trial court" (People v Sanchez, 7 AD3d 645,646 [2004], lv denied 3 NY3d 681 [2004]), and the court's decision will be upheldwhere, as here, the defendant's request is merely an attempt to delay the trial (see People vSides, 75 NY2d 822, 824 [1990]). We agree with defendant, however, that the court erred inadmitting testimony concerning defendant's decision not to meet with the police after an initialpre-arrest interview and in allowing the prosecutor to comment on defendant's decision onsummation (see generally People v De George, 73 NY2d 614, 617-618 [1989]).Nevertheless, we conclude that there is no reasonable possibility that the error might havecontributed to defendant's conviction and thus that the error is harmless beyond a reasonabledoubt (see generally People v Crimmins, 36 NY2d 230, 237 [1975]; People vBrown, 266 AD2d 838, 838-839 [1999], lv denied 94 NY2d 860 [1999]). We furtherconclude that, viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to defendant's contention, thesentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of rape in the first degree under Penal Law § 130.35 (1), and it thus must beamended to reflect that he was convicted under Penal Law § 130.35 (4) (see People v Martinez, 37 AD3d1099, 1100 [2007], lv denied 8 NY3d 947 [2007]). Present—Smith, J.P.,Centra, Fahey, Carni and Pine, JJ.