| People v Smith |
| 2010 NY Slip Op 05869 [75 AD3d 420] |
| July 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kevin Smith, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Mary C. Farrington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered September11, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree (two counts) and criminal possession of a controlled substance in the third and fifthdegrees, and sentencing him to an aggregate term of five years, unanimously modified, on thelaw, to the extent of vacating the sentence and remanding for resentencing, and otherwiseaffirmed.
Defendant failed to demonstrate good cause for the assignment of substitute counsel (see People v Linares, 2 NY3d507, 510-511 [2004]; People v Sides, 75 NY2d 822, 824 [1990]). "Defendant'sunjustified hostility toward his counsel and his disagreements with counsel's tactics did notrequire substitution" (People vWalton, 14 AD3d 419, 420 [2005], lv denied 5 NY3d 796 [2005]). Defendant'scomplaints about his counsel's pretrial performance were generalized and conclusory. Even if, asdefendant alleged, counsel once chastised him for making demands that counsel viewed asunreasonable, that incident did not amount to a breakdown of communication. Finally, counsel'spermissible defense of his own performance did not create a conflict (see People v Nelson, 7 NY3d 883[2006]).
The court's Sandoval ruling struck a proper balance between the probative value ofdefendant's prior convictions on the issue of credibility and the risk of unfair prejudice (seePeople v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459[1994]; People v Pavao, 59 NY2d 282, 292 [1983]). The court properly exercised itsdiscretion when it permitted the People to identify defendant's prior convictions, including drugconvictions, and precluded inquiry into their underlying facts.
Defendant did not preserve his claim that the court should have permitted him tocross-examine police witnesses about "substantiated" Civilian Complaint Review Boardcomplaints lodged against them in unrelated cases. While defendant personally expressed someinterest in raising this issue, defense counsel never sought to make any such inquiry, and thatwas a tactical decision normally to be made by counsel (see People v Ferguson, 67NY2d 383, 390 [1986]). In any event, defendant's comments were insufficient to preserve theclaims he raises on appeal, particularly with regard to his Sixth Amendment right ofconfrontation (see People v Kello, 96 [*2]NY2d 740, 743[2001]). We decline to review them in the interest of justice. As an alternative holding, weconclude that defendant was not prejudiced by the absence of cross-examination on the unrelatedcomplaints, since they were not material to the officers' credibility. To the extent defendant isclaiming his attorney's handling of this issue was ineffective, we reject that claim on this record(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]).
As the People concede, defendant is entitled to a new sentencing proceeding because therecord does not establish that he made a valid waiver of his right to counsel before representinghimself at sentencing (see People v Arroyo, 98 NY2d 101, 104 [2002]).Concur—Mazzarelli, J.P., Renwick, Freedman, Richter and Abdus-Salaam, JJ.