| People v Bennett |
| 2012 NY Slip Op 03348 [94 AD3d 1570] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickyBennett, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered June 8, 2010. The judgment convicted defendant, upon a jury verdict, of arson in thethird degree and attempted arson in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofarson in the third degree (Penal Law § 150.10 [1]) and attempted arson in the third degree(§§ 110.00, 150.10 [1]). We reject defendant's contention that Supreme Court erredin admitting in evidence a tape-recorded conversation between defendant and his former fianc�e.Contrary to defendant's contention, the People laid a proper foundation for the admission inevidence of that recording (see People vHurlbert, 81 AD3d 1430, 1431 [2011], lv denied 16 NY3d 896 [2011]; seegenerally People v Ely, 68 NY2d 520, 527 [1986]), and the court did not abuse its discretionin concluding that the recording was sufficiently audible to warrant its admission in evidence(see People v Cleveland, 273 AD2d 787, 788 [2000], lv denied 95 NY2d 864[2000]). Defendant's further contention that the court erred in admitting in evidence the recordingof a jailhouse telephone call between defendant and his girlfriend is not preserved for our review(see generally People v Jacquin, 71 NY2d 825, 826-827 [1988]), and we decline toexercise our power to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
We reject the contention of defendant "that the court failed to make an appropriate inquiryinto his complaints concerning defense counsel and in response to his request for substitution ofcounsel. Defendant 'did not establish a serious complaint concerning defense counsel'srepresentation and thus did not suggest a serious possibility of good cause for substitution [ofcounsel]' " (People v Adger, 83AD3d 1590, 1591 [2011], lv denied 17 NY3d 857 [2011]; see generally People v Moore, 41AD3d 1149, 1150-1151 [2007], lv denied 9 NY3d 879 [2007], reconsiderationdenied 9 NY3d 992 [2007]). In any event, inasmuch as defendant did not subsequentlyexpress dissatisfaction with defense counsel or renew his request for new counsel, we concludeunder the circumstances of this case that his request for substitution of counsel was abandoned(see People v Ocasio, 81 AD3d1469, 1470 [2011], lv denied 16 NY3d 898 [2011], cert denied 565 US—, 132 S Ct 318 [2011]).[*2]
We also reject the contention of defendant that the courterred in denying that part of his second omnibus motion seeking to sever the counts of theindictment. We conclude that the counts were properly joined inasmuch as "they are 'defined bythe same or similar statutory provisions and consequently are the same or similar in law' " (People v Davis, 19 AD3d 1007,1007 [2005], lv denied 21 AD3d 1442 [2005]; see CPL 200.20 [2] [c]).Defendant " 'failed to meet his burden of submitting sufficient evidence of prejudice from thejoinder to establish good cause to sever' " (People v Ogborn, 57 AD3d 1430, 1430 [2008], lv denied12 NY3d 786 [2009]; see CPL 200.20 [3]), and the court therefore did not abuse itsdiscretion in denying that part of the second omnibus motion (see People v Owens, 51 AD3d 1369, 1370-1371 [2008], lvdenied 11 NY3d 740 [2008]; Peoplev Dozier, 32 AD3d 1346, 1346-1347 [2006], lv dismissed 8 NY3d 880 [2007]).Viewing the evidence, the law and the circumstances of this case, in totality and as of the time ofrepresentation, we conclude that defense counsel provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's further contention, the conviction is supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Finally, the sentence is not unduly harsh orsevere. Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.