| People v Wimberly |
| 2011 NY Slip Op 05994 [86 AD3d 806] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DarrelWimberly, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 19, 2010, upon a verdict convicting defendant of the crimes of robbery in thesecond degree and criminal possession of a weapon in the third degree.
A department store's loss prevention officer observed defendant stuffing several pairs ofsocks down his pants. When the loss prevention officer followed defendant out of the store andconfronted him, defendant pulled what appeared to be a handgun from his waistband andquestioned why he was being stopped. The loss prevention officer backed away. He then calledthe police and directed them to defendant, who was attempting to get a ride from drivers innearby parking lots. Upon arresting defendant, the police recovered a BB gun. Defendant wasindicted on charges of robbery in the second degree and criminal possession of a weapon in thethird degree. Following a trial where he was convicted of both counts, County Court sentenceddefendant to a prison term of 10 years followed by three years of postrelease supervision on therobbery count and a concurrent prison term of 1 to 3 years on the weapon possession count.Defendant appeals.
Defendant's "challenge to the sufficiency of the evidence presented to the grand jury isprecluded by his conviction on legally sufficient evidence" (People v Peryea, 68 AD3d 1144, [*2]1147 [2009], lv denied 14 NY3d 804 [2010]; seeCPL 210.30 [6]). Having failed to challenge the sufficiency of the trial evidence, defendant maynot now challenge the sufficiency of the evidence before the grand jury (see People v Lumnah, 81 AD3d1175, 1177 [2011], lv denied 16 NY3d 897 [2011]). The People were not required togive an intoxication charge to the grand jury, as there was no evidence of intoxication presentedin that forum and the People were not required to present evidence of any mitigating defense(see People v Lancaster, 69 NY2d 20, 30 [1986], cert denied 480 US 922[1987]). Any error in the charge given to the grand jury was harmless, considering that propercharges were given to the trial jury (see People v Peryea, 68 AD3d at 1147). Due todefendant's failure to object to the amendment of the indictment shortly before trial, that issue isunpreserved for our review (see Peoplev Rivera, 22 AD3d 888, 889 [2005], lv denied 6 NY3d 780 [2006]).
County Court did not abuse its discretion in ruling that the People could inquire aboutdefendant's prior petit larceny conviction if he chose to testify. At the Sandoval hearing,the People sought permission to use 13 of defendant's 39 prior convictions. The court onlypermitted the People to use three of those convictions. This ruling struck an appropriate balanceby considering the potential prejudice to defendant as well as the prosecution's right to impeachdefendant with convictions that reflect his dishonesty or willingness to place his own interestsabove those of society (see People vStevens, 65 AD3d 759, 762 [2009], lv denied 13 NY3d 839 [2009]; People v Boodrow, 42 AD3d 582,584-585 [2007]).
County Court did not err in declining to permit defendant to proceed pro se. Whiledefendants have the right to represent themselves, courts must assure that the waiver of thefundamental right to counsel is unequivocal, voluntary and intelligent (see People v Gillian, 8 NY3d 85,88 [2006]). Rather than presenting an unequivocal request to represent himself, defendant madethat request while expressing dissatisfaction with counsel (see id.). During the colloquywith the court, defendant stated that he had serious memory problems that prevented him fromunderstanding events as they transpired and from recalling past events. Defendant's inability tocomprehend and intelligently respond to the court's questions evinced his inability to fullyunderstand the proceedings. Under the circumstances, the court reasonably denied defendant'srequest after concluding that defendant had not intelligently made the determination to proceedpro se (see People v Thomas, 73AD3d 1223, 1224-1225 [2010], lv dismissed 15 NY3d 779 [2010]).
The verdict was not against the weight of the evidence. Defendant contends that, due toevidence of his intoxication, the People failed to prove his intent to steal property or consciouslydisplay what appeared to be a handgun. Defendant did not testify and presented no evidence attrial. The only references to his intoxication were his possession of a crack pipe at the time of hisarrest, the testimony of the arresting officer that defendant appeared high and defendant'sstatements to police that he had a drug problem and needed help. There was no evidence thatdefendant actually consumed any drug or—if he did—the amount, time period oreffect upon defendant of any such ingestion. The evidence from the store's loss prevention officerand the arresting police officer established that defendant took several pairs of socks withoutpaying for them and, when he was confronted, displayed what appeared to be a handgun to avoidapprehension. We uphold the jury's determination of guilt because a different finding would havebeen unreasonable.
County Court properly instructed the jury. Because no reasonable view of the evidencewould support defendant's theory that he did not consciously display the BB gun during his flight[*3]from the store, he was not entitled to a jury charge on petitlarceny as a lesser included offense of the robbery count (see People v Bowman, 79 AD3d 1368, 1369-1370 [2010], lvdenied 16 NY3d 828 [2011]). The court's intoxication charge was proper (seeCJI2d[NY] Penal Law § 15.25); based upon the evidence presented at trial, defendant wasnot entitled to the additional language that he now suggests.
Defendant received the effective assistance of counsel. Defendant contends that counselshould have moved to suppress an on-scene identification by the loss prevention officer andphysical evidence seized from defendant at the time of his arrest. Defendant cites, as counsel'sadditional shortcomings, the failure to secure a jury charge on the lesser included offense of petitlarceny, to object to the amendment of the indictment, and to object to County Court'sintoxication charge, limitation of the scope of voir dire and its Sandoval ruling. Counselcannot be deemed ineffective for failing to make meritless motions, objections or arguments, asmany of these would have been. As counsel had strategic or legitimate reasons for not pursuingthe arguments defendant now raises, defendant has not shown that his counsel was ineffective(see People v Baker, 14 NY3d266, 270-271 [2010]; People vHenry, 81 AD3d 1165, 1165 [2011]; People v Evans, 81 AD3d 1040, 1041 [2011]).
The sentence that County Court imposed was not harsh or excessive. Although defendant hadnever been convicted of a felony before, the sheer volume of his prior convictions over anextended period of time, along with the potential for violence created by defendant's conduct ofdisplaying what appeared to be a handgun in a busy commercial area, rendered the sentenceappropriate (see People v Wilson,78 AD3d 1213, 1217 [2010], lv denied 16 NY3d 747 [2011]; People v Elliot, 57 AD3d 1095,1097 [2008], lv denied 12 NY3d 783 [2009]).
Defendants' remaining contentions have not been preserved for our review.
Rose, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.