| People v Taylor |
| 2017 NY Slip Op 02224 [148 AD3d 1607] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Stephen D.Taylor, Appellant. (Appeal No. 1.) |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedMay 19, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa weapon in the second degree (two counts) and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga jury trial of two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and one count of criminal possession of a weapon in the thirddegree (§ 265.02 [1]). In appeal No. 2, defendant appeals from an order denying hismotion pursuant to CPL 440.10 seeking to vacate the judgment in appeal No. 1.
Defendant failed to preserve for our review his contention in appeal No. 1 that the evidenceis legally insufficient to support his conviction of criminal possession of a weapon in the seconddegree under Penal Law § 265.03 (1) (b) because he failed to renew his motion for atrial order of dismissal after presenting evidence in his defense (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, we reject thatcontention. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient tosupport the conviction (see People v Bleakley, 69 NY2d 490, 495 [1987]). An eyewitnesstestified that defendant had a gun when he was at her residence, where it was ultimatelyrecovered by police, and the recording of her 911 call, reporting that defendant was waving thegun and threatening her nephew as the incident was happening, was admitted in evidence.Furthermore, one of the police witnesses testified that he saw defendant holding what appeared tobe a gun before he entered the residence. We further conclude that, viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). The jurywas free to credit the testimony of the People's witnesses, rather than defendant's testimony, andwe perceive no reason to reject those credibility determinations (see generally id.).
We reject defendant's further contention in appeal No. 1 that County Court erred inpermitting the People to offer Molineux evidence from a police witness that,approximately three months prior to this incident, while conducting surveillance, he hearddefendant say to another individual "Don't f. . . with me; you know, I'll use mypistol." We conclude that the evidence was relevant with respect to the element of intent (seePeople v Alvino, 71 NY2d 233, 241-242 [1987]), inasmuch as the weapon that wasrecovered was a .32 caliber automatic "Pistole," a type of handgun. Further, the court properlyweighed the probative value of the evidence against the prejudicial impact by limiting thetestimony to that statement (see People vRivers, 82 AD3d 1623, 1623 [2011], lv denied 17 NY3d 904 [2011]), and thecourt minimized the potential prejudice by [*2]providing acurative instruction (see People vHolmes, 104 AD3d 1288, 1289 [2013], lv denied 22 NY3d 1041 [2013]). In anyevent, any error in permitting the testimony is harmless. The evidence of defendant's guilt isoverwhelming, and there is no significant probability that defendant would have been acquitted ifthat evidence had been excluded (seePeople v Casado, 99 AD3d 1208, 1211-1212 [2012], lv denied 20 NY3d 985[2012]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his challenge in appeal No. 1 to that ruling (see People v Reyes, 144 AD3d1683, 1685 [2016]). In any event, that contention lacks merit because " '[t]he court'sSandoval compromise . . . reflects a proper exercise of the court'sdiscretion' " (People vMonk, 57 AD3d 1497, 1499 [2008], lv denied 12 NY3d 785 [2009]). We rejectdefendant's further contention in appeal No. 1 that the court abused its discretion in denying hisrequest for new counsel on the eve of trial inasmuch as defendant failed to show good cause forthe request (see People v Farmer,132 AD3d 1238, 1238-1239 [2015], lv denied 27 NY3d 1068 [2016]; see generally People v Porto, 16 NY3d93, 99-100 [2010]). Finally, with respect to appeal No. 1, the sentence is not unduly harsh orsevere.
With respect to appeal No. 2, we conclude that the court did not err in denying defendant'smotion seeking to vacate the judgment either on the ground that there was an allegedBrady violation or on the ground that he was denied effective assistance of counsel. Bothgrounds for defendant's motion are based upon an alleged conflict of interest related to aprosecution witness. Defendant contends that the People violated their Brady obligationby failing to provide information regarding convictions that a witness had in 1993 for petitlarceny, and that defense counsel was ineffective inasmuch as his office had previouslyrepresented the prosecution witness, in 1998, 2001 and 2006. With respect to the allegedBrady violation, we agree with defendant that the convictions constitute Bradymaterial (see People v Valentin, 1AD3d 982, 982-983 [2003], lv denied 1 NY3d 602 [2004]). However, evenassuming, arguendo, that the information regarding those convictions was available to the People(see id. at 983), we conclude that there is no " 'reasonable possibility' "that the information "would have changed the result of the proceedings" (People v Fuentes, 12 NY3d 259,263 [2009], rearg denied 13 NY3d 766 [2009]).
We further conclude that defendant was not denied effective assistance of counsel. "Toprevail on an ineffective assistance of counsel claim, a defendant must first demonstrate theexistence of a potential conflict of interest . . . Defendant must also show that theconduct of his defense was in fact affected by the operation of the conflict of interest, or that theconflict operated on the representation . . . , and defendant failed to make such ashowing here . . . In light of the fact that defense counsel did not know of theconflict at the time of the trial, there is no basis to conclude that the potential conflict hinderedhis representation of defendant" (Peoplev Weeks, 15 AD3d 845, 847 [2005], lv denied 4 NY3d 892 [2005] [internalquotation marks omitted]). Present—Whalen, P.J., Centra, Peradotto, DeJoseph andScudder, JJ.