| People v Johnson |
| 2013 NY Slip Op 00856 [103 AD3d 1251] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BobbyJohnson, Jr., Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered August 21, 2008. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree (three counts), robbery in the first degree (nine counts),reckless endangerment in the second degree, endangering the welfare of a child andunlawful imprisonment in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, three counts of burglary in the second degree (Penal Law §140.25 [1] [a], [c], [d]), and nine counts of robbery in the first degree (§ 160.15[2], [3], [4]). Contrary to defendant's contention, County Court properly exercised itsdiscretion in denying his motion for new assigned counsel on the morning of thecommencement of trial inasmuch as defendant failed to establish good cause for asubstitution of counsel (seePeople v Linares, 2 NY3d 507, 511 [2004]). The court conducted the requisiteinquiry when defendant made his oral request for substitution of counsel and concludedthat defendant's objections were without merit (see People v Stilts, 86 AD3d 927, 928 [2011], lvdenied 18 NY3d 886 [2012]; see generally People v Sides, 75 NY2d 822,825 [1990]). Good cause does not exist where, as here, "on the eve of trial,disagreements over trial strategy generate discord" (Linares, 2 NY3d at 511).
We reject defendant's further contention that he received ineffective assistance ofcounsel. Defendant failed to demonstrate that defense counsel's decision not to pursuethe affirmative defense of mental disease or defect pursuant to Penal Law § 40.15was not the result of a " 'well-advised defense strategy' " (People v Skinner, 224AD2d 916, 916 [1996], quoting People v Ford, 46 NY2d 1021, 1023 [1979]; see generally People v Caban,5 NY3d 143, 152 [2005]). Viewing the evidence, the law and the circumstances ofthis case, in totality and as of the time of the representation, we conclude that defendantreceived meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]).
Defendant's contention that the court erred in bifurcating the jury instructions overtwo days is not preserved for our review because he failed to make a timely objectionthereto (see People vMiller, 59 AD3d 463, 464 [2009], lv denied 12 NY3d 856 [2009];People v Graham, 228 AD2d 299, [*2]299[1996], lv denied 88 NY2d 985 [1996]; People v Williams, 206 AD2d917, 917 [1994], lv denied 84 NY2d 911 [1994]). We reject defendant'scontention that the bifurcation of the jury instructions is a mode of proceedings error thatdoes not require preservation. Defendant's reliance on People v Fujah (182 AD2d774, 775 [1992]) is misplaced because in that case there was a violation of CPL 260.30when the jury instructions were provided before the parties' summations, whereas herethere was no such violation. We decline to exercise our power to review defendant'scontention concerning the bifurcated jury instructions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Present—Centra, J.P., Fahey,Carni, Sconiers and Valentino, JJ.