| People v Jones |
| 2010 NY Slip Op 09669 [79 AD3d 1665] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NakieshaJones, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), renderedNovember 5, 2009. The judgment convicted defendant, upon a jury verdict, of petit larceny andcriminal possession of stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting her upon a jury verdict of petit larceny(Penal Law § 155.25) and criminal possession of stolen property in the fifth degree(§ 165.40), defendant contends that her right to counsel was impaired by County Court'sdenial of her requests for substitution of counsel. The record establishes that defendant withdrewthose requests and agreed to proceed with assigned counsel, and we thus conclude that shewaived her present contention (seePeople v Hernandez, 62 AD3d 401 [2009], lv denied 13 NY3d 797 [2009]).Defendant also waived her present contention that the court erred in denying her the right toproceed pro se, inasmuch as the record establishes that she withdrew her request to representherself (see People v McRae, 284 AD2d 657 [2001], lv denied 96 NY2d 921[2001]). We reject the further contention of defendant that defense counsel was ineffective inrequesting that the court submit lesser included offenses to the jury (see People v Taylor, 2 AD3d1306, 1308 [2003]; see generally People v Colville, 79 AD3d 189, 201 [2010]), andin failing to seek dismissal of the indictment pursuant to CPL 190.50 and 210.40 (see generally People v Marcial, 41AD3d 1308 [2007], lv denied 9 NY3d 878 [2007]). Finally, under the circumstancesof this case, the court did not abuse its discretion in denying defendant's request for a missingevidence charge based upon the failure of the People to preserve the stolen merchandise (seePeople v Pfahler, 179 AD2d 1062, 1063 [1992]). Present—Scudder, P.J., Martoche,Green, Pine and Gorski, JJ.