| People v Fudge |
| 2013 NY Slip Op 01659 [104 AD3d 1169] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Anthony Fudge, Appellant. |
—[*1] Anthony Fudge, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered July 14, 2009. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree, unlawful fleeing a police officer in a motor vehicle in thethird degree, resisting arrest, criminal possession of a controlled substance in the seventhdegree and reckless driving.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, assault in the second degree (Penal Law § 120.05 [3]), defendantcontends that he was denied effective assistance of counsel. We reject that contention.While defense counsel need not support a defendant's pro se motion for the assignmentof new counsel, a defendant is denied the right to counsel when defense counsel becomesa witness against the defendant by taking a position adverse to the defendant in thecontext of such a motion (seee.g. People v Kirkland, 68 AD3d 1794, 1795 [2009]; People v Okolo, 35 AD3d1272, 1273 [2006], lv denied 8 NY3d 925 [2007]). Here, however, the briefdefense of her own performance by defendant's attorney did not create a prejudicialconflict (see Okolo, 35 AD3d at 1273; People v Walton, 14 AD3d 419, 420 [2005], lv denied5 NY3d 796 [2005]). Defendant failed to preserve for our review his furthercontention that he was deprived of his right to a fair trial because the court improperlydenigrated defense counsel in the presence of the jury (see People v Charleston,56 NY2d 886, 887-888 [1982]). In any event, we conclude that defendant's contention iswithout merit (cf. People vLynch, 60 AD3d 1479, 1481 [2009], lv denied 12 NY3d 926 [2009]).
With respect to defendant's challenge to the severity of the sentence, we note that, tothe extent defendant contends that he was improperly penalized for asserting his right toa trial, that contention is not preserved for our review (see People v Griffin, 48 AD3d1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]; People v Irrizarry, 37 AD3d1082, 1083 [2007], lv denied 8 NY3d 946 [2007]; People v Green, 35 AD3d1211, 1211 [2006], lv denied 8 NY3d 985 [2007]) and, in any event, thatcontention lacks merit (see Griffin, 48 AD3d at 1236-1237). Moreover, thesentence imposed is not unduly harsh [*2]or severe.
Finally, we have reviewed defendant's contentions raised in his pro se supplementalbrief and conclude that they are unpreserved for our review (see CPL 470.05[2]), and in any event are without merit. Present—Smith, J.P., Peradotto, Lindley,Whalen and Martoche, JJ.