| People v Wesley |
| 2015 NY Slip Op 09310 [134 AD3d 964] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jacqueline Wesley, Also Known as Jacqueline Wesley-Rosa,Appellant. |
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, ThomasM. Ross, and Brian D. Mogck of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered July 12, 2012, convicting her of murder in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, her request for an adjournment to retainprivate counsel, made on the eve of trial, was properly denied. "[A]bsent exigent orcompelling circumstances, a court may, in the exercise of its discretion, deny adefendant's request to substitute counsel made on the eve of or during trial if thedefendant has been accorded a reasonable opportunity to retain counsel of his [or her]own choosing before that time" (People v Arroyave, 49 NY2d 264, 271 [1980]).Here, the criminal action had been pending against the defendant for more than one yearprior to the defendant's eve-of-trial request for an adjournment. Accordingly, thedefendant had a reasonable opportunity to retain counsel of her own choosing beforerequesting an adjournment for that purpose (see People v Campbell, 54 AD3d 959 [2008]; People v Goodwine, 46 AD3d702 [2007]; People v Persad, 306 AD2d 359 [2003]; People v Davis,299 AD2d 420, 421 [2002]; People v Gloster, 175 AD2d 258, 259-260 [1991]).Moreover, there were no "exigent or compelling circumstances" warranting a lateadjournment (People v Arroyave, 49 NY2d at 271). In that respect, although thedefendant made certain generalized complaints about her assigned counsel, "thedefendant's assertions did not suggest the serious possibility of a[n] . . .impediment to the defendant's representation by assigned counsel" (People v Allison, 69 AD3d740, 740 [2010]; see People v Gloster, 175 AD2d at 259-260).
Further, the defendant was not deprived of due process or a fair trial by the SupremeCourt's response to defense counsel's request to elicit the defendant's testimony innarrative form. "[A]n attorney faced with a client who intends to commit perjury has theinitial responsibility to attempt to dissuade the client from pursuing the unlawful courseof action" (People vAndrades, 4 NY3d 355, 360 [2005]; see Nix v Whiteside, 475 US 157,170 [1986]; People v DePallo, 96 NY2d 437, 441 [2001]). If such an attempt isunsuccessful, "defense counsel, bound to honor defendant's right to testify on his [*2]own behalf, should refrain from eliciting the testimony intraditional question-and-answer form and permit [the] defendant to present his testimonyin narrative form" (People v Andrades, 4 NY3d at 360; see People v Mercure, 47AD3d 950 [2008]).
Contrary to the defendant's contention, where defense counsel indicates an intentionto present the defendant's testimony in narrative form, due process does not require that arecord be made of either defense counsel's reasons for believing the defendant willcommit perjury or of defense counsel's advice to the defendant regarding the intention tocommit perjury or the consequences of that course of action. "A lawyer with a perjuriousclient must contend with competing considerations—duties of zealous advocacy,confidentiality and loyalty to the client on the one hand, and a responsibility to the courtsand our truth-seeking system of justice on the other" (People v DePallo, 96 NY2dat 440). Requiring counsel to put on the record his or her reasons for anticipatingperjured testimony and the advice proffered to the defendant related to his or hertestimony would not strike the appropriate balance between these competingconsiderations but rather, would present too great a risk that defense counsel would beforced to reveal client confidences (see generally People v Darrett, 2 AD3d 16, 24-25 [2003]).A defendant who seeks to challenge counsel's judgment to elicit testimony in narrativeform or counsel's advice in that regard may raise those issues in a motion pursuant toCPL 440.10.
Relatedly, the defendant contends that her counsel was ineffective in relation to thedecision to present her testimony in narrative form and advising her in that regard, and ineliciting testimony on her direct examination about certain incidents of domestic violencebetween her and her husband. The defendant further contends, in her pro se supplementalbrief, that her counsel was ineffective in failing to retain an expert to contradict certainevidence presented by a medical examiner. The defendant's ineffective assistance claim isbased, in part, on matter appearing on the record and, in part, on matter outside therecord and, thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; Peoplev Brown, 45 NY2d 852, 853-854 [1978]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in her pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Rivera, J.P.,Leventhal, Miller and Duffy, JJ., concur.