| People v Porter |
| 2014 NY Slip Op 05045 [119 AD3d 438] |
| July 3, 2014 |
| Appellate Division, First Department |
[*1]
| 1 The People of the State of New York,Respondent, v Richard Porter, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., at motion forreassignment of counsel; Edward J. McLaughlin, J., at jury trial and sentencing),rendered July 6, 2011, convicting defendant of grand larceny in the fourth degree (sevencounts), criminal possession of stolen property in the fourth degree (six counts), criminalpossession of stolen property in the fifth degree (two counts) and jostling, and sentencinghim, as a persistent felony offender, to an aggregate term of 15 years to life, unanimouslyaffirmed.
Defendant's claim that the court failed to deliver suitable accompanying instructionswhen it gave the jury a verdict sheet containing annotations that distinguished amongvarious counts is a claim requiring preservation (see People v Collins, 99 NY2d14 [2002]), and we decline to review it in the interest of justice. As an alternate holding,we find no basis for reversal. The annotated verdict sheet complied with CPL 310.20 (2),and defendant was not prejudiced by any deficiency in the court's oral instructions in thisregard.
Defendant also failed to preserve his argument that the court was required to instructthe jury not to commingle the evidence relating to separate thefts, and we likewisedecline to review it in the interest of justice. As an alternate holding, we find it to bewithout merit. The court gave an appropriate instruction that the jury was to reach aseparate determination as to each count. An instruction against commingling of evidencewould have been incorrect because the evidence of the separate larcenies overlapped, andthe evidence of each larceny tended to prove the other (see People v Hyatt, 38 AD3d233 [1st Dept 2007], lv denied 9 NY3d 845 [2007]).
Defendant received effective assistance of counsel under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). Defendant has not shown that hisattorney's lack of objection concerning the above-discussed issues was objectivelyunreasonable, or that it had any reasonable possibility of affecting the outcome ordepriving defendant of a fair trial.
Neither defendant's standard form motion for reassignment of counsel, nor hisnegative comments about his relationship with his attorney (made in a different contextfrom a request for new counsel), contained the specific factual allegations necessary totrigger the court's obligation to make a "minimal inquiry" into the need for new counsel(see People v Porto, 16NY3d 93, 100 [2010]).
[*2] We haveconsidered and rejected defendant's challenges to the sufficiency of the evidencesupporting those convictions that involved a nontestifying victim. The totality ofcircumstances warranted the inference that the property at issue was "stolen either bycommon-law trespassory taking or by acquiring lost property, as defined in Penal Law§ 155.05 (2) (b)" (People v Meador, 279 AD2d 327, 328 [2001],lv denied 96 NY2d 865 [2001]).
The court properly exercised its discretion when it adjudicated defendant a persistentfelony offender, based on his very extensive criminal record. Defendant has repeatedlybeen convicted of larceny-related crimes at the class E felony level, and he hasdemonstrated that the sentences available for such felonies are inadequate to deter himfrom criminal activity. Defendant's challenge to the constitutionality of the adjudicationis unavailing (see People vBattles, 16 NY3d 54 [2010]; People v Quinones, 12 NY3d 116 [2009]).Concur—Friedman, J.P., Sweeny, Andrias, Saxe and Kapnick, JJ.