| People v McCullough |
| 2011 NY Slip Op 02584 [83 AD3d 1438] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TuremailMcCullough, Appellant. |
—[*1] Turemail McCullough, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered October 29, 2007. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree, assault in the second degree and grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Monroe County, in accordance with the following memorandum: Defendantappeals from a judgment convicting him upon a jury verdict of robbery in the first degree (PenalLaw § 160.15 [4]), assault in the second degree (§ 120.05 [6]) and grand larceny inthe third degree (§ 155.35). Defendant contends in his main brief that Supreme Court erredin admitting in evidence the testimony of a police investigator that improperly bolstered theidentification testimony of an eyewitness. That contention is not preserved for our review (see People v Newman, 71 AD3d1509 [2010], lv denied 15 NY3d 754 [2010]; People v Cala, 50 AD3d 1581 [2008], lv denied 10 NY3d957 [2008]; People v Slaughter, 27AD3d 1188 [2006], lv denied 7 NY3d 795 [2006]), and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve for our review his contention in his pro se supplemental brief that theassault conviction is not supported by legally sufficient evidence (see People v Lane, 7 NY3d 888,889 [2006]; People v Hines, 97 NY2d 56, 61, [2001], rearg denied 97 NY2d 678[2001]). In any event, that contention is without merit (see generally People v Chiddick, 8 NY3d 445, 446-447 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). Defendant's challenge to the legal sufficiency of the evidence before the grandjury, i.e., that the testimony of an eyewitness was improperly bolstered, is not properly before uson this "appeal from an ensuing judgment of conviction based upon legally sufficient trialevidence" (CPL 210.30 [6]; see People vAfrika, 79 AD3d 1678, 1679 [2010]; People v Lee, 56 AD3d 1250, 1251 [2008], lv denied 12[*2]NY3d 818 [2009]).
We agree with defendant, however, that the court erred in failing to conduct a sufficientinquiry into his complaint regarding a conflict of interest with defense counsel. On the day ofsentencing, defendant requested new counsel and indicated that he had filed a grievanceregarding defense counsel's actions, including his alleged failure to investigate certain allegationsand to respond appropriately to defendant's requests. At that time, defense counsel asked thecourt to assign new counsel to investigate defendant's claims. The court, however, did notaddress defendant's request for new counsel, nor did it conduct any inquiry concerning hisallegations. It is well settled that "it is incumbent upon a defendant to make specific factualallegations of 'serious complaints about counsel' . . . If such a showing is made, thecourt must make at least a 'minimal inquiry,' and discern meritorious complaints fromdisingenuous applications by inquiring as to 'the nature of the disagreement or its potential forresolution' " (People v Porto, 16NY3d 93, 100 [2010]). Here, the court proceeded to sentence defendant without seekinginput from defense counsel regarding whether the grievance created an adversarial situation andwithout inquiring with respect to the other issues raised. The court also sentenced defendantwithout directing defense counsel to continue his representation of defendant. Furthermore,although there is no rule requiring that a defendant who has filed a grievance against his attorneybe assigned new counsel, the court was required to make an inquiry to determine whether defensecounsel could continue to represent defendant in light of the grievance (see People v Smith, 25 AD3d 573,574-576 [2006], lv denied 6 NY3d 853 [2006]). We therefore modify the judgment byvacating the sentence, and we remit the matter to Supreme Court for the assignment of newcounsel and resentencing. Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.