| People v Edwards |
| 2012 NY Slip Op 04424 [96 AD3d 1089] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DuaneEdwards, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered July 16,2009 in Albany County, upon a verdict convicting defendant of the crimes of burglary in thesecond degree, petit larceny and criminal possession of stolen property in the fifth degree.
On a snowy December evening, the victim arrived at his home located on WashingtonAvenue in the City of Albany to find that his alarm system had been triggered. Upon entering hishome through its back door, the victim discovered that the alarm siren had been ripped off thewall, the key pad to the alarm system was dangling by a wire and all the lights in his house wereon, including the basement lights. Descending the basement stairwell to investigate, the victimspotted defendant darting out the basement door leading to the front exterior of the victim's homeand gave chase. Following a struggle, during which the victim's neighbor assisted in subduingdefendant, the victim was able to hold defendant on the ground until the arrival of police. Acursory search for weapons on defendant's person revealed, among other things, a pair of circuitbreakers in defendant's pocket, which the victim later identified as having been taken from hisutility room. Following a jury trial, defendant was convicted of burglary in the second degree,petit larceny and criminal possession of stolen property in the fifth degree and sentenced, as asecond felony offender, to an aggregate prison term of 14 years to be followed by five years ofpostrelease supervision. He now appeals.[*2]
Defendant argues that his convictions were against theweight of the evidence, claiming that the victim was "too distressed" by the burglary to haveaccurately identified him as the perpetrator and that he was never in possession of the victim'sstolen circuit breakers. The victim testified at trial that, upon discovering that a man wearing agreen army jacket was attempting to flee from his basement, he immediately ran after the intruderand was able to wrestle him to the ground before he even left the victim's property. During theensuing struggle, which lasted for approximately 10 minutes, the victim got a "good look" at theperpetrator's face and the two men, along with the neighbor, stood waiting for the police on awell-lit street before the perpetrator, apparently startled by the onset of police sirens, againattempted to evade capture by jumping over a short wrought iron fence surrounding the victim'sproperty and making a getaway down the street. The victim again promptly took chase and wasable to subdue the perpetrator on the street near the victim's home until police arrived. Both thevictim and the neighbor, who also testified, identified defendant as this man.
Defendant, on the other hand, testified that on the evening in question, he was walking downWashington Avenue on his way to a rescue mission when the victim came up behind him, threwhim to the ground and held him there for no apparent reason. Notably, defendant admitted towearing a green army jacket of the same style as that worn by the perpetrator and, although hepersistently denied having committed any crime, this presented a credibility issue for the jury toresolve (see People v Higgins, 57AD3d 1315, 1317 [2008], lv denied 12 NY3d 817 [2009]; People v Lozada, 41 AD3d 1042,1043 [2007], lv denied 9 NY3d 924 [2007]). Viewing the evidence in a neutral light andaccording deference to the jury's credibility determinations (see People v Bleakley, 69NY2d 490, 495 [1987]; People v Higgins, 57 AD3d at 1317), we are satisfied that theverdict of guilt on each of the counts is supported by the weight of the evidence (see People v Woodrow, 91 AD3d1188, 1190 [2012], lv denied 18 NY3d 999 [2012]; People v Colon, 42 AD3d 549,550 [2007], lv denied 9 NY3d 922 [2007]; People v Armstrong, 11 AD3d 721, 723 [2004], lv denied 4NY3d 760 [2005]).
We are similarly unpersuaded by defendant's contention that he was denied the effectiveassistance of counsel. As the defense relied primarily upon the theory that defendant was not thesame man that the victim and the neighbor observed fleeing the victim's home, counsel's decisionto elicit testimony regarding whether the neighbor recognized defendant as the perpetratorconstituted legitimate trial strategy (seePeople v Kuforiji, 88 AD3d 1165, 1167 [2011]; People v Young, 35 AD3d 958, 961 [2006], lv denied 8NY3d 929 [2007]; People v Cordilione, 159 AD2d 864, 867 [1990], lv denied 76NY2d 786 [1990]). Defendant further faults counsel for failing to object to testimony of theresponding officer regarding statements made by the victim to the officer during hisinvestigation. However, as none of the officer's statements provided evidence not alreadyintroduced at trial by the victim himself, any alleged errors by counsel in this regard were not "soegregious as to prejudice defendant's right to a fair trial" (People v Garrow, 75 AD3d 849, 852 [2010]; see People v Albanese, 38 AD3d1015, 1019 [2007], lv denied 8 NY3d 981 [2007]; see also People v Oathout, 90 AD3d1418, 1421 [2011]). Defendant's remaining contention that counsel was ineffective inpresenting what defendant believes to be an impermissibly brief boilerplate closing argument isalso without merit. Counsel's closing argument, which spans the course of several pages in therecord, was tailored to the issues of this short, two-day trial, and implored the jury to considerwhat counsel perceived to be weaknesses in the People's case (compare People v Chapman, 54 AD3d507, 511 [2008]). Our review of the record reveals that counsel presented a clear andconsistent defense, which he developed through relevant cross-examination of witnesses, madeappropriate motions before, during and after trial and, importantly, succeeded in obtaining a notguilty verdict on two counts, [*3]including the most serious crimecharged. Considering the totality of the circumstances, we find that defendant was provided withmeaningful representation (see People vRogers, 94 AD3d 1246, 1251 [2012]; People v Malcolm, 74 AD3d 1483, 1487 [2010], lv denied15 NY3d 954 [2010]; People v Albanese, 38 AD3d at 1018-1019).
Nor do we find merit to defendant's contention that Supreme Court erred in denying hisrequest to appoint new counsel without first inquiring into the nature of defendant's discontent.The decision to substitute counsel for an indigent defendant "is within the 'discretion andresponsibility' of the trial judge" (Peoplev Porto, 16 NY3d 93, 99 [2010], quoting People v Medina, 44 NY2d 199, 207[1978]) and should only be made where "good cause" is shown to necessitate substitution(People v Porto, 16 NY3d at 100). Here, Supreme Court's denial of defendant's requestcame after it questioned both defendant and counsel regarding defendant's concern that counselwas unable to diligently represent him due to what he believed to be an unenthusiasticpresentation of the People's pretrial plea offer. Because defendant "failed to proffer specificallegations of a 'seemingly serious request' " sufficient to warrant substitution of counsel and wasindeed afforded an opportunity to be heard, it cannot be said that Supreme Court abused itsdiscretion in denying his request (id.; see People v Augustine, 89 AD3d 1238, 1240-1241 [2011]).
Finally, defendant contends that his sentence was harsh and excessive. Defendant's sentence,which is within the permissible statutory parameters, "will not be disturbed on appeal absentevidence of a clear abuse of discretion or the existence of extraordinary circumstances" (People v Fairley, 63 AD3d 1288,1290 [2009], lv denied 13 NY3d 743 [2009] [internal quotation marks and citationsomitted]). Given defendant's extensive criminal history, which includes three prior burglaryconvictions, we are unpersuaded that modification of his sentence is warranted in the interest ofjustice (see People v Barringer, 54AD3d 442, 444 [2008], lv denied 11 NY3d 830 [2008]).
Defendant's remaining contentions raised in his pro se supplemental brief have beenreviewed and found to be lacking in merit.
Mercure, Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.