| People v Zarro |
| 2009 NY Slip Op 07873 [66 AD3d 1050] |
| October 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Francis A. Zarro, Jr., Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Roseann B. MacKechnie and JodiA. Danzig of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Rooney,J.), rendered November 18, 2004, convicting him of scheme to defraud in the first degree, grandlarceny in the first degree, grand larceny in the second degree (five counts), criminal possessionof stolen property in the second degree (four counts), and grand larceny in the third degree (twocounts), after a nonjury trial, and imposing sentence. The appeal brings up for review the denial,without a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
"The right of an indigent criminal defendant to the services of a court-appointed lawyer doesnot encompass a right to appointment of successive lawyers at the defendant's option"(People v McClam, 60 AD3d 968, 969 [2009]; cf. People v Linares, 2 NY3d507, 510 [2004]). Rather, "before substitution of counsel is granted, good cause, such as aconflict of interest or irreconcilable differences, must be demonstrated" (People vMartin, 41 AD3d 616, 616 [2007]). "Good cause determinations are necessarilycase-specific and, therefore, fall within the discretion of the trial court" (People vMcClam, 60 AD3d at 970). Here, the court did not improvidently exercise its discretion inrefusing, on the eve of trial, to grant substitution of the defendant's counsel. The record makesclear that the request, made on the day opening statements were scheduled to be delivered, wasengineered by the defendant merely as a dilatory tactic (see People v Arroyave, 49 NY2d264, 271-272 [1980]; People v Stevenson, 36 AD3d 634 [2007]; People vGloster, 175 AD2d 258, 259 [1991]).
Contrary to the defendant's contention, he validly waived his right to a jury trial (seeNY Const, art I, § 2). The court ensured that the defendant understood the rights he wasgiving up, and the defendant signed the waiver in open court after having those rights explainedto him (see People v Buckley, 299 AD2d 417, 418 [2002]; People v Longchamp,147 AD2d 659 [1989]). Nothing in the proceedings vitiated the validity of the waiver.
The defendant claims that the evidence was legally insufficient to establish his guilt ofscheme to defraud in the first degree. To the extent that the claim is preserved for appellatereview, it is without merit. Viewing the evidence in the light most favorable to the prosecution,we find that it was legally sufficient to establish the defendant's guilt of scheme to defraud in thefirst degree (see Penal Law § 190.65 [1]) beyond a reasonable doubt (seePeople v Contes, 60 NY2d 620 [1983]). Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to [*2]view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the prosecution established by a preponderance of theevidence that venue was proper in Dutchess County (see People v Greenberg, 89 NY2d553, 555-556 [1997]).
The defendant's contention that the Attorney General had a conflict of interest is dehors therecord, and the defendant's contention that he was deprived of his right to the effective assistanceof counsel also rests largely on matter dehors the record. To the extent that those claims aredehors the record, they may not be reviewed on direct appeal (see People v Fleming, 65AD3d 702 [2009]). To the extent the record permits review of the defendant's claim that counselwas ineffective, we find that the defendant received effective representation (see People vJorge, 61 AD3d 996, 996-997 [2009]).
The defendant's claim regarding the Attorney General's authority to prosecute him is withoutmerit (see Executive Law § 63 [3]; Matter of Mann Judd Landau v Hynes,49 NY2d 128, 138 [1979]), as are the defendant's claims regarding the indictment (see Peoplev First Meridian Planning Corp., 86 NY2d 608, 616 [1995]; People v Kindlon, 217AD2d 793, 795 [1995]; People v Rosich, 170 AD2d 703 [1991]; cf. People vSanchez, 84 NY2d 440 [1994]), the search warrant (People v Fernandez, 61 AD3d891 [2009]), the grand jury proceedings (see People v Hernandez, 27 AD3d 229 [2006]),and the court's deliberation and the form of its verdict (see CPL 320.20).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Fisher, Angiolillo and Leventhal, JJ., concur.