| People v Jones |
| 2014 NY Slip Op 01036 [114 AD3d 1239] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Clemon Jones, Also Known as Clement Jones, Also Known asClemont Jones, Appellant. (Appeal No. 1.) |
—[*1] Clemon Jones, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered September 4, 2007. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a forged instrument in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of two counts of criminal possession of a forged instrument in thesecond degree (Penal Law § 170.25) and, in appeal No. 2, he appeals from ajudgment convicting him upon his plea of guilty of criminal possession of a forgedinstrument in the first degree (Penal Law § 170.30). With respect to appeal No. 1,defendant correctly concedes that he failed to preserve for our review his challenge to thelegal sufficiency of the evidence inasmuch as he made only a general motion for a trialorder of dismissal (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, thatcontention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Theevidence presented at trial, which included recorded conversations between defendantand an undercover officer, supported the jury's rejection of the affirmative defense ofentrapment (see People vGordon, 72 AD3d 841, 842 [2010], lv denied 15 NY3d 920 [2010];People v White, 272 AD2d 872, 872 [2000], lv denied 95 NY2d 859[2000]).
Defendant failed to preserve for our review his further contention in appeal No. 1that the police conduct deprived him of due process and, in any event, that contention iswithout merit (see People vDin, 62 AD3d 1023, 1024 [2009], lv denied 13 NY3d 795 [2009]).Contrary to the further contention of defendant, County Court did not abuse its discretionin refusing to assign him new counsel. The record establishes that the court made therequisite " 'minimal inquiry' " into defendant's reasons for requesting new counsel (People v Porto, 16 NY3d93, 100 [2010]; see Peoplev Adger, 83 AD3d 1590, 1591-1592 [2011], lv denied 17 NY3d 857[2011]), and defendant " 'did not establish a serious complaint concerning defensecounsel's representation and thus did not suggest a serious possibility of good cause forsubstitution [of counsel]' " (Adger, 83 AD3d at 1591; see People v Ayuso, 80 AD3d708, 708-709 [2011], lv denied 16 NY3d 856 [2011]). Defendant's problemswith defense counsel resulted from "strategic disagreements . . . and froman antagonistic attitude on defendant's part," neither of which requires substitution ofcounsel (People vSturdevant, 74 AD3d 1491, 1494 [2010], lv denied 15 NY3d 810[2010]). We note that the court granted defendant's previous request for new counsel,and it is well settled that " '[t]he right of an indigent criminal defendant to the services ofa court-appointed lawyer does not encompass a right to appointment of successivelawyers at defendant's option' " (People v Ward, 27 AD3d 1119, 1120 [2006], lv denied7 NY3d 819 [2006], reconsideration denied 7 NY3d 871 [2006], quotingPeople v Sides, 75 NY2d 822, 824 [1990]).
Also with respect to appeal No. 1, we reject the contention of defendant in his mainand pro se supplemental briefs that he was denied effective assistance of counsel. Therecord does not support defendant's contention in his main brief that communicationissues hindered the defense. Even assuming, arguendo, that defense counsel's priorrepresentation of a codefendant of the confidential informant in an unrelated caseconstitutes a potential conflict of interest, we conclude that defendant has notdemonstrated that "the alleged conflict operated upon his defense in any way" (People v Monette, 70 AD3d1186, 1188 [2010], lv denied 15 NY3d 776 [2010]). Contrary to defendant'scontention in his pro se supplemental brief, defense counsel's failure to object to a singleallegedly improper remark during the prosecutor's summation does not render himineffective (see People vWard, 107 AD3d 1605, 1607 [2013], lv denied 21 NY3d 1078 [2013]).Rather, "[v]iewing the evidence, the law and the circumstances of this case, in totalityand as of the time of representation," we conclude that defendant was not deniedeffective assistance of counsel (People v Goossens, 92 AD3d 1281, 1282 [2012], lvdenied 19 NY3d 960 [2012]; see generally People v Baldi, 54 NY2d 137,147 [1981]).
Defendant further contends in his main brief that he was deprived of a fair trial byprosecutorial misconduct on summation. Defendant failed to preserve his contention forour review with respect to one of the two challenged remarks inasmuch as he did notobject to that remark at trial (see Ward, 107 AD3d at 1606; People v Foster, 101 AD3d1668, 1670 [2012], lv denied 20 NY3d 1098 [2013]). In any event, weconclude that "[a]ny 'improprieties were not so pervasive or egregious as to deprivedefendant of a fair trial' " (People v Johnson, 303 AD2d 967, 968 [2003], lvdenied 100 NY2d 583 [2003]). As defendant correctly concedes, he likewise failedto preserve for our review his contention that he was improperly shackled during thepersistent felony offender hearing (see People v Robinson, 49 AD3d 1269, 1270 [2008], lvdenied 10 NY3d 869 [2008]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
The contention of defendant concerning appeal No. 1 in his main and pro sesupplemental briefs that he was improperly adjudicated a persistent felony offender wasconsidered and rejected by this Court on defendant's appeal from an order denying hisCPL article 440 motion to vacate the sentence imposed upon the underlying judgment ofconviction (People v Jones,109 AD3d 1108, 1108 [2013]). Defendant's further contention in his pro sesupplemental brief that the persistent felony offender statute is unconstitutional isunpreserved for our review (see People v Besser, 96 NY2d 136, 148 [2001]), andwithout merit in any event (seePeople v Quinones, 12 NY3d 116, 119 [2009], cert denied 558 US 821[2009]; People v Coleman,82 AD3d 1593, 1594 [2011], lv denied 17 NY3d 793 [2011]).
We have reviewed defendant's remaining contentions in his pro se supplemental briefconcerning appeal No. 1 and conclude that none warrants reversal or modification.
With respect to appeal No. 2, defendant contends in his main brief that he did notknowingly, voluntarily, or intelligently enter his Alford plea and that the Peoplefailed to provide strong evidence of guilt. As defendant correctly concedes, he failed topreserve those contentions for our review inasmuch as he did not move to withdraw theplea or to vacate the judgment of conviction (see People v Hinkle, 56 AD3d 1210, 1210 [2008]).Contrary to defendant's contention, this case does not fall within the narrow exception tothe preservation requirement set forth in People v Lopez (71 NY2d 662, 666[1988]) and, in any event, we conclude that the record establishes that defendant'sAlford plea was "the product of a voluntary and rational choice," and that therecord "contains strong evidence of actual guilt" (People v Dash, 74 AD3d 1859, 1860 [2010], lvdenied 15 NY3d 892 [2010] [internal quotation marks omitted]; see People v Cruz, 89 AD3d1464, 1465 [2011], lv denied 18 NY3d 993 [2012]).
Finally, defendant's contention in appeal No. 2 that the court should have correctedunspecified errors in the presentence report (PSR) or, alternatively, that the court shouldhave conducted a hearing to determine the merits of defendant's allegations concerningthe alleged errors is unpreserved for our review inasmuch as he did not request suchrelief from the court (see Peoplev Gibbons, 101 AD3d 1615, 1616 [2012]; see generally CPL 470.05[2]). Indeed, the record establishes that defense counsel provided the court with certainobjections to the PSR and requested that the court append those objections to the PSR.The court agreed to do so, and defense counsel responded that such relief "comports withour request." Present—Scudder, P.J., Fahey, Peradotto, Carni and Valentino, JJ.