| People v Bradford |
| 2014 NY Slip Op 04287 [118 AD3d 1254] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDaniel Bradford, Jr., Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.),rendered April 7, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, criminal contempt in the first degree (two counts),aggravated criminal contempt, offering a false instrument for filing in the first degree andtampering with physical evidence.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts and the law by reversing that part convicting defendant of tampering withphysical evidence and dismissing count six of the indictment, and by vacating thesentences imposed on the remaining counts, and as modified the judgment is affirmedand the matter is remitted to Steuben County Court for resentencing on those counts.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1]),aggravated criminal contempt (§ 215.52 [1]), and tampering with physicalevidence (§ 215.40 [2]). Defendant failed to preserve for our review hiscontention regarding the selection of juror number one inasmuch as he did not exercise achallenge for cause or a peremptory challenge against her (see People v Forino, 65 AD3d1259, 1260 [2009], lv denied 13 NY3d 907 [2009]; People v Berry, 43 AD3d1365, 1366 [2007], lv denied 9 NY3d 1031 [2008]; People vHowington, 284 AD2d 1009, 1009-1010 [2001], lv denied 97 NY2d 683[2001]). Even assuming, arguendo, that defendant had challenged the prospective jurorand his challenge had merit, we note that defendant's contention would not requirereversal because he failed to exhaust his peremptory challenges prior to the completionof jury selection (see CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 248[2000]; People vArguinzoni, 48 AD3d 1239, 1241 [2008], lv denied 10 NY3d 859[2008]).
We reject defendant's contention that County Court erred in denying his requests forsubstitution of assigned counsel. A trial court must carefully evaluate serious complaintsabout counsel, and "should substitute counsel when a defendant can demonstrate 'goodcause' " for removal of his current attorney (People v Linares, 2 NY3d 507, 510 [2004]). Here, the courtcarefully evaluated defendant's first request, made after the first witness testified, andproperly concluded that defense counsel was "reasonably likely to afford. . . defendant effective assistance" of [*2]counsel (People v Medina, 44 NY2d 199, 208[1978]; see generally People vSmith, 18 NY3d 588, 592-593 [2012]). The court also properly denieddefendant's second request for assignment of new counsel later in the trial, which wasbased on defendant's unsubstantiated allegation of a conspiracy between defense counsel,the court, the prosecutor and law enforcement agencies, as well as defense counsel'salleged failure to file appropriate motions and cross-examine certain witnesses inaccordance with defendant's wishes, and the frequent arguments between defendant anddefense counsel. "At most, defendant's allegations evinced disagreements with counselover strategy . . . , which were not sufficient grounds for substitution" (People v Agard, 107 AD3d613, 613 [2013], lv denied 21 NY3d 1039 [2013]; see Linares, 2NY3d at 511; Medina, 44 NY2d at 209).
Defendant further contends that he was denied effective assistance of counsel basedon various errors made by defense counsel. With respect to defendant's contention thatdefense counsel failed to move to suppress certain items seized from the former maritalresidence, we note that defendant was barred from the premises by an order of protectionand thus "had neither a legitimate expectation of privacy therein nor standing tochallenge the police entry into the house" (People v Robinson, 205 AD2d 836,837 [1994], lv denied 84 NY2d 831 [1994]). "Given that the governing law wasunfavorable, we cannot say on this record that the failure to make [that suppressionmotion] rendered counsel's otherwise competent performance constitutionally deficient"(People v Brunner, 16NY3d 820, 821 [2011]). Defendant's remaining "alleged instances of ineffectiveassistance concerning defense counsel's failure to make various objections [or certainmotions or requests] 'are based largely on [defendant's] hindsight disagreements withdefense counsel's trial strategies, and defendant failed to meet his burden of establishingthe absence of any legitimate explanations for those strategies' " (People v Douglas, 60 AD3d1377, 1377 [2009], lv denied 12 NY3d 914 [2009]; see People v Lane, 106 AD3d1478, 1480 [2013], lv denied 21 NY3d 1043 [2013]; People v Stepney, 93 AD3d1297, 1298 [2012], lv denied 19 NY3d 968 [2012]). Viewing the evidence,the law, and the circumstances of this case in totality and at the time of representation, weconclude that defendant received effective assistance of counsel (see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's further contention, the court properly granted the prosecutor'sVentimiglia/Molineux application, thereby permitting the People tointroduce evidence that defendant had previously threatened to kill the victim, that thevictim planned to enforce the order of protection that had been issued against defendant,and that defendant had engaged in assaultive conduct toward the victim in the past. Theevidence was admissible because it tended to prove defendant's intent and the absence ofmistake or accident, and its probative value outweighed its potential for prejudice(see People v Alvino, 71 NY2d 233, 242 [1987]; People v Siplin, 66 AD3d1416, 1417 [2009], lv denied 13 NY3d 942 [2010]; People v Gonzalez, 62 AD3d1263, 1265 [2009], lv denied 12 NY3d 925 [2009]). The evidence alsoestablished the victim's state of mind (see People v Gorham, 17 AD3d 858, 860-861 [2005];People v McClain, 250 AD2d 871, 872 [1998], lv denied 92 NY2d 901[1998]; see generally People v Cook, 93 NY2d 840, 841 [1999]), which tended todisprove the defense advanced at trial that the victim was accidentally injured whileriding an ATV with defendant.
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence because he failed to renew his motion for a trialorder of dismissal after presenting evidence (see People v Lane, 7 NY3d 888, 889 [2006]; People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In anyevent, viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the conviction is supported bylegally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is against the weight of the[*3]evidence only with respect to the crime of tamperingwith physical evidence (see generally Bleakley, 69 NY2d at 495). We thereforemodify the judgment accordingly. The record establishes that, after the other crimes inthe indictment had been committed, defendant may have cleaned part of the scene of thecrime. Inasmuch as that is the only evidence that relates to the tampering charge, weconclude that it was unreasonable for the jury to conclude, as was charged in theindictment, that the People established beyond a reasonable doubt that defendant,"believing that certain physical evidence was to be produced or used in a prospectiveofficial proceeding and intending to prevent such production or use, . . .suppressed [that property] by an act of concealment, alteration or destruction" (cf.People v Porpiglia, 215 AD2d 784, 784-785 [1995], lv denied 86 NY2d 800[1995]).
Defendant failed to preserve for our review his contention that remarks made by theprosecutor during summation constituted prosecutorial misconduct that deprived him of afair trial (see People vStanley, 108 AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013]),and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]).
The sentence is not unduly harsh or severe. We note, however, that a discrepancybetween the sentencing minutes and the certificate of conviction requires vacatur of thesentences imposed on the remaining counts. Although the sentencing minutes indicatethat the sentence imposed on count two is to run consecutively to the sentences imposedon counts three through five, the minutes are silent with respect to whether the sentenceimposed on count two is to run consecutively or concurrently to the sentence imposed oncount one. Thus, by operation of law, those sentences shall run concurrently (seePenal Law § 70.25 [1] [a]). The certificate of conviction, however,indicates that the sentences imposed on counts one and two are to run consecutively.Inasmuch as the record leaves open the possibility that the court's failure to specify atsentencing that those sentences are to run consecutively was accidental (cf. People vVasquez, 88 NY2d 561, 580-581 [1996]), we further modify the judgment byvacating the sentences imposed on the remaining counts, and we remit the matter toCounty Court for resentencing on those counts (see People v Jacobson, 60 AD3d 1326, 1329 [2009], lvdenied 12 NY3d 916 [2009]; People v Sinkler, 288 AD2d 844, 845 [2001],lv denied 97 NY2d 761 [2002]). Present—Scudder, P.J., Smith, Carni,Lindley and Sconiers, JJ.