| People v Hopkins |
| 2009 NY Slip Op 08062 [67 AD3d 471] |
| November 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antonio Hopkins, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Philip J. Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered November 19,2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him to a term of 4½ years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility.
The court properly denied defendant's request for new counsel, made during jury selection,since defendant, who received a reasonable opportunity to be heard, did not establish good causefor a substitution (see People vLinares, 2 NY3d 507 [2004]; People v Sides, 75 NY2d 822 [1990]). The courtpermitted defendant to state the reasons for his request, and only addressed counsel afterdefendant was finished speaking. Defendant did not establish a "breakdown" in theattorney-client relationship, but only expressed disagreements about trial strategy and ageneralized complaint about the quality of the representation. We have considered and rejecteddefendant's remaining arguments on this issue.
The court properly declined to instruct the jury that "mere presence" at the scene of a crimeis insufficient to establish guilt. There was no factual basis for such an instruction (seePeople v Slacks, 90 NY2d 850 [1997]), which would have been unnecessary and potentiallyconfusing. The People's sole theory was that defendant personally gave drugs to an undercoverofficer in return for money. There was no issue of accessorial liability, and defendant's defensewas misidentification. In any event, the court's charge, viewed as a whole, adequately conveyedthe same concept.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Renwick,DeGrasse and Richter, JJ.