| People v Melendez |
| 2010 NY Slip Op 02819 [71 AD3d 1166] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonMelendez, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered October 9, 2008, convicting him of criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, reversal is not required on the ground that the CountyCourt improvidently exercised its discretion in failing to conduct an inquiry as to whetherassignment of new counsel was warranted. Although defense counsel indicated, just prior to juryselection, that the defendant was not speaking to him or to his supervisor, the defendant did notrequest new counsel or complain about his counsel at that juncture. Under the circumstances ofthis case, there was no need for further inquiry in light of the County Court's proper denials ofthe defendant's two prior motions for substitution for the same defense counsel in which hefailed to demonstrate the requisite "good cause" (People v Medina, 44 NY2d 199, 207[1978] [internal quotation marks]; see People v Linares, 2 NY3d 507, 510 [2004]), andin the absence of any subsequent request by the defendant for assignment of new counsel (cf.People v Sides, 75 NY2d 822, 824-825 [1990]).
The defendant's contention that the County Court improperly denied his request to chargecriminal possession of a weapon in the fourth degree (see Penal Law § 265.01 [1])as a lesser-included offense of criminal possession of a weapon in the second degree (seePenal Law § 265.03 [3]) is unpreserved for appellate review (see CPL 470.05 [2];People v Gray, 86 NY2d 10, 19 [1995]). In any event, the contention is without merit.Although criminal possession of a weapon in the fourth degree (see Penal Law §265.01 [1]) is a lesser-included offense of the subsection of criminal possession of a weapon inthe second degree charged, there was no reasonable view of the evidence that the defendantcommitted the lesser, but not the greater, offense (see People v Laing, 66 AD3d 1353,1355 [2009]).
Moreover, the County Court did not err in declining to charge the jury that the People wererequired to prove that the defendant had knowledge that the gun recovered from his person wasloaded (see People v Brandon, 57 AD3d 1489, 1489 [2008]; People vBroomfield, 275 AD2d 885 [2000]; People v Smith, 270 AD2d 719, 719 [2000];People v Toribio, 216 AD2d 189 [1995]; People v Casanas, 170 AD2d [*2]257, 257 [1991]; People v Ansare, 96 AD2d 96, 97 [1983]).
The defendant's further contention that the admission of testimony regarding a 911 call of"shots fired" violated his rights to confrontation under the Federal and State constitutions iswithout merit since the content of the 911 call was nontestimonial in nature (see People vPhillips, 68 AD3d 1137 [2009]; People v Conyers, 33 AD3d 929 [2006]).
Contrary to the defendant's contention, the County Court did not impermissibly punish himfor exercising his right to proceed to trial by imposing a sentence of 15 years imprisonment afterhe rejected a plea offer of five years (see People v Zurita, 64 AD3d 800, 801 [2009];People v Davis, 27 AD3d 761, 762 [2006]; People v Carillo, 297 AD2d 288, 289[2002]; cf. People v Simmons, 29 AD3d 1024, 1025 [2006]; People v Cosme,203 AD2d 375, 376 [1994]). Moreover, the sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Skelos, Eng and Roman, JJ., concur.