| People v Jaramillo |
| 2012 NY Slip Op 05466 [97 AD3d 1146] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Miguel A.Jaramillo, Appellant. |
—[*1] Miguel A. Jaramillo, defendant-appellant pro se. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedMarch 7, 2011. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree, criminal possession of a weapon in the fourth degree and perjury in the first 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 ofassault in the first degree (Penal Law § 120.10 [1]), criminal possession of a weapon in thefourth degree (§ 265.01 [2]) and perjury in the first degree (§ 210.15). By makingonly a general motion for a trial order of dismissal, defendant failed to preserve for our reviewhis contention that the evidence is legally insufficient to establish the element of serious physicalinjury with respect to the assault count (see People v Gray, 86 NY2d 10, 19 [1995]).Contrary to defendant's further contention, viewing the evidence in light of that element ofassault as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence with respect to that element (see generally People v Bleakley, 69NY2d 490, 495 [1987]). We conclude that the jury properly weighed the evidence in determiningthat defendant inflicted serious physical injury when he stabbed the victim, thereby laceratingmuscle tissue, puncturing the victim's liver, and causing permanent scarring (see People v Barnett, 16 AD3d1128, 1129 [2005], lv denied 4 NY3d 883 [2005]).
County Court properly exercised its discretion in denying defendant's request for assignmentof new counsel (see generally People vPorto, 16 NY3d 93, 99-100 [2010]). "[D]efendant's disagreements with counsel overtrial strategy did not establish the requisite good cause for substitution of counsel" (People v Saladeen, 12 AD3d 1179,1180 [2004], lv denied 4 NY3d 767 [2005]), nor was substitution of counsel warrantedbased on defendant's apparent attempt to create a conflict of interest by commencing an action infederal court against the Public Defender (see People v Walton, 14 AD3d 419, 420 [2005], lv denied5 NY3d 796 [2005]; People v Davis, 226 AD2d 125, 126 [1996], lv denied88 NY2d 1020 [1996]).[*2]
The record of the suppression hearing supports thedetermination of the court that the police obtained defendant's consent to enter his residence (see People v Nielsen, 89 AD3d1041, 1042 [2011], lv denied 18 NY3d 996 [2012]), and properly seized a shotgunthat was in plain view in his living room (see People v Brown, 96 NY2d 80, 88-89[2001]). We agree with defendant, however, that the record does not support the court'sdetermination that the People met their burden of establishing that defendant consented to theseizure of a bulletproof vest from his residence (see People v McFarlane, 93 AD3d 467, 467-468 [2012]).Nevertheless, we conclude that the court's error in refusing to suppress the vest on that ground isharmless beyond a reasonable doubt (see generally People v Crimmins, 36 NY2d 230,237 [1975]).
We reject defendant's contention that the court violated his right to a public trial byconducting certain proceedings in chambers. The record establishes that the proceedings at issuewere distinct from trial proceedings that must be conducted in public (see People vOlivero, 289 AD2d 1082, 1082 [2001], lv denied 98 NY2d 639 [2002]). Defendantfailed to preserve for our review his further contentions that the prosecutor improperly shifted theburden of proof during summation (seePeople v Glenn, 72 AD3d 1567, 1568 [2010], lv denied 15 NY3d 805 [2010]),and that the court improperly relied on the presentence report in determining the amount ofrestitution (see People v Roots, 48AD3d 1031, 1032 [2008]). We decline to exercise our power to review those contentions asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Further, absentany indication that the court relied upon allegedly erroneous information in the presentencereport in imposing the sentence, we decline to disturb the sentence based upon the court's failureto redact that information (see People vMolyneaux, 49 AD3d 1220, 1222 [2008], lv denied 10 NY3d 937 [2008]). Thesentence is not unduly harsh or severe. We have considered the contentions raised by defendantin his pro se supplemental brief and conclude that none warrants modification or reversal of thejudgment. Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.