| People v Rupert |
| 2016 NY Slip Op 00823 [136 AD3d 1311] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFranklin A. Rupert, Appellant. |
Shirley A. Gorman, Brockport, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered February 10, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the second degree (Penal Law § 140.25 [2]). Contraryto defendant's contention, County Court (John L. DeMarco, J.) did not abuse itsdiscretion in denying his request for new assigned counsel after "inquiring as to 'thenature of the disagreement' " between defendant and defense counsel inasmuchas defendant failed to establish that there was " 'good cause' " forsubstitution (People v Porto,16 NY3d 93, 100 [2010]). Instead, defendant's allegations regarding defense counsel"evinced disagreements with counsel over strategy . . . , which were notsufficient grounds for substitution" (People v Blackwell, 129 AD3d 1690, 1691 [2015] [internalquotation marks omitted]).
Defendant failed to object to the testimony of two police officers regardingstatements he made at the scene of his arrest, i.e., "I'm here" in response to a "K-9warning," and "no," in response to a question by a police officer whether anyone else wasin the house, and he thus failed to preserve for our review his contention that thetestimony deprived him of a fair trial because those statements were not included in theCPL 710.30 notice (see Peoplev Davis, 118 AD3d 1264, 1266 [2014], lv denied 24 NY3d 1083[2014]). Even assuming, arguendo, that those statements should have been included inthe CPL 710.30 notice, we conclude that any error in admitting them in evidence isharmless because the evidence against defendant is overwhelming, and there is noreasonable possibility that defendant would have been acquitted if the statements had notbeen admitted in evidence (seePeople v Roosevelt, 125 AD3d 1452, 1454 [2015], lv denied 25 NY3d1076 [2015]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).
Contrary to defendant's contention, the court (Melchor E. Castro, A.J.) properlydetermined that the People proved beyond a reasonable doubt that defendant is apersistent violent felony offender by establishing that he was convicted of burglary in thesecond degree on two occasions within 10 years prior to the commission of the instantoffense (see Penal Law § 70.04 [1] [b] [iv], [v]). The evidencepresented by the People included a fingerprint comparison for the three offenses,together with the certificates of conviction of the two predicate offenses, as well as thesecond felony offender information for the second predicate offense (see People v Clyde, 90 AD3d1594, 1596 [2011], lv denied 19 NY3d 971 [2012]). Defendant correctlycontends that the court erred in determining how much of the 10-year period was tolledby periods of incarceration when it included a period of parole supervision, and in usingthe incorrect date for the commission of the instant offense. Upon our review of therecord, however, we conclude that the sentence for the first predicate offense was notimposed more than 10 years before the commission of the instant offense (seePenal Law § 70.04 [1] [b] [iv], [v]; see generally People v [*2]VanHooser [appeal No. 2], 126 AD3d 1531, 1532[2015]). Defendant failed to object to the testimony of a police officer at the persistentviolent felony offender hearing, elicited during cross-examination, regarding a statementthat defendant made following his arrest, and which was not included in the CPL 710.30notice, and he thus failed to preserve for our review his contention that the statement wasnot admissible (see People v Oliver, 63 NY2d 973, 975 [1984]). Contrary todefendant's contention, we conclude that he received meaningful representation at thepersistent violent felony offender hearing (see generally People v Baldi, 54 NY2d137, 147 [1981]; People vGregg, 107 AD3d 1451, 1452 [2013]). Present—Centra, J.P., Peradotto,Lindley, DeJoseph and Scudder, JJ.