| People v Clyde |
| 2011 NY Slip Op 09685 [90 AD3d 1594] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RaymondClyde, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Robert B. Wiggins, A.J.), renderedMarch 24, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the seconddegree (two counts), unlawful imprisonment in the first degree and promoting prison contrabandin the first degree. The judgment was reversed by order of this Court entered April 30, 2010 in amemorandum decision (72 AD3d 1538 [2010]), and the People on June 3, 2010 were grantedleave to appeal to the Court of Appeals from the order of this Court, and the Court of Appeals onNovember 22, 2011 reversed the order and remitted the case to this Court for consideration offacts and issues raised but not determined on the appeal to this Court (18 NY3d 145 [2011]).
Now, upon remittitur from the Court of Appeals and having considered the facts and issuesraised but not determined on appeal to this Court,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: In one of two prior appeals involving the instant defendant, we reversed thejudgment convicting defendant following a jury trial of, inter alia, two counts of assault in thesecond degree (Penal Law § 120.05 [7]), and we granted defendant a new trial based uponour conclusion that "County Court erred in failing to articulate a reasonable basis on the recordfor its determination to restrain defendant in shackles during the trial" (People v Clyde,72 AD3d 1538, 1538-1539 [2010]). In the second of the two appeals, the People appealed froman order insofar as it granted that part of defendant's motion for a trial order of dismissal withrespect to count one of the indictment, charging defendant with attempted rape in the first degree(§§ 110.00, 130.35 [1]). The court had reserved decision on the motion butultimately granted it pursuant to CPL 290.10 (1), and we concluded that the court properlygranted that part of defendant's motion. The Court of Appeals reversed our orders in both appealsand remitted the matter to this Court to consider defendant's contentions raised but not addressedin the first appeal (People v Clyde, 18 NY3d 145 [2011]). With respect to the secondappeal, the Court of Appeals remitted the matter to County Court for sentencing on theconviction of attempted rape. We thus now address only defendant's remaining contentions in thefirst appeal.[*2]
Defendant, while he was an inmate at AuburnCorrectional Facility, attacked a civilian employee as she was walking in a corridor of thecorrectional facility. Defendant assaulted another civilian employee who ran to the scene afterhearing the woman's cries for help.
Contrary to defendant's contention in his main and pro se supplemental briefs, the court didnot violate his constitutional rights by permitting him to represent himself at trial. In his pro sesupplemental brief, defendant contends that he was required to represent himself because he wastold by his attorney that his attorney was not prepared for trial, and the court denied defendant'srequest for an adjournment. Defense counsel, however, denied that he told defendant that he wasnot prepared for trial. Notably, in requesting an adjournment, defendant asserted that the DistrictAttorney's term of office would expire in a few weeks and that the current District Attorneytherefore would not try the case at an adjourned date. Where, as here, the defendant's request foran adjournment sought a tactical advantage, the court properly denied the request (see generally People v Grimes, 53AD3d 1055, 1056 [2008], lv denied 11 NY3d 789 [2008]). The record establishesthat the court conducted an exceedingly thorough and searching inquiry to ensure that defendant'swaiver of the right to be represented by counsel was knowing, voluntary and intelligent (see People v Providence, 2 NY3d579, 582 [2004]).
Contrary to defendant's further contention in his main brief, the court did not err insentencing him as a persistent violent felony offender (see Penal Law § 70.08 [1][a]). Defendant, who has been imprisoned since 1996, thus tolling the 10-year limitation period(see § 70.04 [1] [b] [iv], [v]), challenged only one of the two prior violent felonyconvictions alleged by the People to be predicate violent felony offenses, i.e., the conviction ofrobbery in the second degree. We conclude that the People proved beyond a reasonable doubtthat defendant was convicted upon his plea of guilty of robbery in the second degree, a violentfelony offense (see § 70.02 [1] [b]), on June 4, 1991 (see People v Williams, 30 AD3d980, 983 [2006], lv denied 7 NY3d 852 [2006]). In addition to the certificate ofconviction, which is presumptive evidence of the facts stated therein (see CPL 60.60 [1]),the People presented a certified fingerprint comparison establishing that defendant's fingerprintsrecords and defendant's fingerprints taken in connection with the arrest for that offense wereidentical. The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontention in his pro se supplemental brief and conclude that it is without merit.Present—Scudder, P.J., Sconiers, Green and Gorski, JJ.