| People v Brooks |
| 2016 NY Slip Op 04858 [140 AD3d 1780] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael Brooks, Appellant. |
Williams Heinl Moody Buschman, P.C., Auburn (Mario J. Gutierrez of counsel), fordefendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered May 24, 2013. The judgment convicted defendant, upon a jury verdict, ofassault 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 assault in the second degree (Penal Law § 120.05 [3]) andsentencing him as a persistent violent felony offender to an indeterminate term ofincarceration of 25 years to life. Defendant failed to preserve for our review his claimpursuant to CPL 30.20 that he was denied a speedy trial inasmuch as he did not move inwriting to dismiss the indictment on that ground (see CPL 210.20 [1] [g]; 210.45[1]; see also People vChinn, 104 AD3d 1167, 1169 [2013], lv denied 21 NY3d 1014 [2013]).In any event, we conclude, upon our evaluation of the pertinent factors (see generallyPeople v Vernace, 96 NY2d 886, 887 [2001]; People v Taranovich, 37 NY2d442, 445 [1975]), that the contention lacks merit (see People v Johnson, 134 AD3d 1388, 1388-1390[2015]).
County Court properly denied defendant's motion to dismiss the indictment on theground that he was shackled while testifying before the grand jury. Although "a criminaldefendant may not be physically restrained in the presence of a [grand] jury unless thereis a rational basis, articulated on the record, for the restraint (see, People ex rel.Washington v Johnson, 79 NY2d 934, 935; People v Mendola, 2 NY2d 270,275)" (People v Felder [appeal No. 2], 201 AD2d 884, 885 [1994], lvdenied 83 NY2d 871 [1994]), reversal is not required here inasmuch as "theprosecutor twice gave cautionary instructions to the [g]rand [j]ury, which dispelled anyprejudice that may have resulted" (Felder, 201 AD2d at 885). Moreover, theoverwhelming nature of the evidence adduced before the grand jury eliminated thepossibility that defendant was prejudiced as a result of the improper shackling (see People v Morales, 132AD3d 1410, 1410 [2015];People v Burroughs, 108 AD3d 1103, 1106 [2013], lv denied 22 NY3d995 [2013]; see generally People v Huston, 88 NY2d 400, 409 [1996]).
The court did not err in granting defendant's request to represent himself at trial. "Adefendant in a criminal case may invoke the right to defend pro se provided: (1)the request is unequivocal and timely asserted, (2) there has been a knowing andintelligent waiver of the right to counsel, and (3) the defendant has not engaged inconduct which would prevent the fair and orderly exposition of the issues" (People vMcIntyre, 36 NY2d 10, 17 [1974]). Here, the court conducted the requisite"searching inquiry" to "ensure that the defendant's waiver [was] knowing, intelligent, andvoluntary" (Matter of KathleenK. [Steven K.], 17 NY3d 380, 385 [2011]; see People v Crampe, 17NY3d 469, 481-482 [2011], cert denied sub nom. New York v Wingate, 565 US&mdash, 132 S Ct 1746 [2012]). Moreover, the court further inquired sufficiently toensure that defendant "was aware of the dangers and disadvantages of proceedingwithout counsel" (People v[*2]Providence, 2 NY3d 579, 582 [2004][internal quotation marks omitted]; see Crampe, 17 NY3d at 481-482).
Viewing the evidence in light of the elements of the crime of assault in the seconddegree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). We note, specifically, thatthe verdict is not against the weight of the evidence with respect to whether defendantcaused a physical injury to the correction officer, nor with respect to whether defendantintended to prevent the correction officer from performing a lawful duty (see People v Pena, 129 AD3d600, 600 [2015], lv denied 26 NY3d 933 [2015]; see generallyDanielson, 9 NY3d at 348-349).
Finally, we conclude that, in light of defendant's history of violent crimes and hisconduct in this case, the sentence imposed is not unduly harsh or severe.Present—Whalen, P.J., Carni, NeMoyer, Troutman and Scudder, JJ.