| People v Williams |
| 2012 NY Slip Op 06402 [98 AD3d 1234] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AngelaWilliams, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedSeptember 18, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toOnondaga County Court for resentencing in accordance with the following memorandum:Defendant appeals from a judgment convicting her upon a jury verdict of burglary in the thirddegree (Penal Law § 140.20). Defendant failed to preserve for our review her contentionthat the evidence is legally insufficient to support the conviction (see People v Gray, 86NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence. Although an acquittal would not have been unreasonable, we cannotsay that the jury failed to give the evidence the weight it should be accorded (see generallyDanielson, 9 NY3d at 348; People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that County Court failed to exercise its discretion in itsSandoval ruling and that, in the event that the court in fact exercised its discretion, thecourt abused its discretion. " 'The extent to which prior convictions bear on the issue of adefendant's credibility is a question entrusted to the sound discretion of the court, reviewableonly for clear abuse of discretion' " (People v Nichols, 302 AD2d 953, 953 [2003], lvdenied 99 NY2d 657 [2003]). When the convictions that the People seek to use are forcrimes of individual dishonesty, the convictions should usually be admitted on a trial for similarcharges, " 'notwithstanding the risk of possible prejudice, because the very issue on which theoffer is made is that of the veracity of the defendant as a witness in the case' " (People v Arguinzoni, 48 AD3d1239, 1241 [2008], lv denied 10 NY3d 859 [2008]; see People v Sandoval,34 NY2d 371, 377 [1974]; People vAlston, 27 AD3d 1141, 1142 [2006], lv denied 6 NY3d 892 [2006]). Theconvictions the People sought to use here, i.e., convictions of petit larceny, grand larceny, andcriminal possession of stolen property, are all convictions of crimes involving individualdishonesty. We conclude that the court properly exercised its discretion in ruling that, ifdefendant testified, the People could impeach defendant using the grand larceny conviction, twopetit larceny convictions, and one criminal possession of stolen property [*2]conviction. With respect to defendant's remaining convictions, thecourt properly ruled that the People could generally ask defendant whether she had beenconvicted of any other misdemeanors.
Contrary to defendant's contention, she was not denied effective assistance of counsel. Toestablish that she received ineffective assistance of counsel, defendant was required todemonstrate "the absence of a strategic or other legitimate explanation for defense counsel'salleged shortcomings" (People vSmith, 93 AD3d 1345, 1346 [2012], lv denied 19 NY3d 967 [2012]). Here,defendant failed to establish that defense counsel lacked a strategic or other legitimate reason forasserting during his opening statement that defendant would testify or for eliciting testimony thatthe individuals in the vehicle in which defendant was riding were using drugs. Indeed, it appearsthat it was defense counsel's strategy to elicit an admission of drug use from the driver of thevehicle so that defense counsel could impeach his testimony. Additionally, defendant was notdenied effective assistance of counsel due to defense counsel's failure to make certain objectionsor arguments. Rather, viewing defense counsel's representation of defendant in its entirety, weconclude that defendant was afforded meaningful representation (see generally People v Schulz, 4 NY3d521, 530 [2005]). Defendant's contentions that she was denied effective assistance ofcounsel because defense counsel was unprepared for trial and did not present a clear andconsistent theory of defense are not supported by the record.
We further reject defendant's contention that the court failed to make a sufficient inquiry intodefendant's complaints about defense counsel and her request for new representation. Defendantdid not make "specific factual allegations of 'serious complaints about counsel' " that required thecourt to conduct a minimal inquiry (People v Porto, 16 NY3d 93, 100 [2010]). In any event, the courtquestioned defendant about her complaints against defense counsel, and defendant did notprovide any further details about those complaints.
We agree with defendant, however, that she was improperly sentenced as a second felonyoffender. When the court asked defendant if she would admit to being convicted of grand larcenyin the fourth degree on March 26, 2004, she stated that she would not do so, that she wanted ahearing, and that she did not remember the prior conviction. Under the circumstances, we agreewith defendant that she sufficiently controverted the allegations to warrant a hearing (seeCPL 400.21 [3], [5]). We therefore modify the judgment by vacating the sentence, and we remitthe matter to County Court for resentencing in compliance with the procedures set forth in CPL400.21. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.