| People v Zuniga |
| 2017 NY Slip Op 03264 [149 AD3d 660] |
| April 27, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Cesar Zuniga, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia B. Heeger ofcounsel), and Zuckerman Spaeder LLP, New York (Anant Kumar of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., at nonjury trial andsentencing; Melissa C. Jackson, J., at reconstruction hearing), rendered October 13, 2010,convicting defendant of predatory sexual assault against a child, and sentencing him to a term of15 years to life, unanimously affirmed.
After an inquiry that was sufficient under the circumstances, the court providently exercisedits discretion in denying defendant's eve-of-trial request to substitute counsel. Contrary todefendant's argument, the fact that the attorney was retained is relevant, because "[t]he remedyavailable to a defendant who is dissatisfied with his or her retained counsel is todischarge that attorney and hire another" (People v Wilburn, 40 AD3d 508, 509 [1st Dept 2007], lvdenied 9 NY3d 883 [2007]), using refunded unearned fees where applicable (see People v Wall, 56 AD3d 361[1st Dept 2008], lv denied 12 NY3d 763 [2009]). While defendant said he wanted a newattorney, he did not tell the court he was seeking to hire new counsel, that he was in a position todo so without undue delay (see People v Arroyave, 49 NY2d 264, 271 [1980]), or that heneeded or wanted assigned counsel. In any event, the court permitted defendant to voice hiscomplaints against the attorney, and there was no basis for substitution of counsel or for furtherinquiry (see People v Porto, 16NY3d 93, 99-100 [2010]; People vLinares, 2 NY3d 507, 511 [2004]). Moreover, the timing and circumstances ofdefendant's complaint strongly suggest that it was a delaying tactic (see People v Medina,44 NY2d 199, 206 [1978]).
Although the stenographic notes of the last day of the trial and the sentencing proceedinghave been lost and no transcript is available for those dates, a reconstruction hearing sufficed toprotect defendant's right to appeal. The judge's notes from the last day of trial, the prosecutor'sdetailed outline of her summation and trial counsel's affirmation, which were placed in the recordat the hearing, provided an adequate basis to determine whether appealable issues existed (seePeople v Glass, 43 NY2d 283, 286 [1977]). The fact that this was a nonjury trial, where thefactfinder is presumed to have disregarded prejudicial matter (see People v Moreno, 70NY2d 403, 406 [1987]), weighs strongly against the concern that the missing minutes may haverevealed appealable issues. We have considered and rejected defendant's remaining argumentsregarding the lost minutes and the reconstruction hearing.
In introducing evidence of the child victim's prompt outcry, the People appropriately elicitedbrief and limited details of the sexual conduct reported by the child (see People vMcDaniel, 81 NY2d 10, 18 [1993]), and there was no prejudice to defendant in any event.Defendant did not preserve his other challenges to the scope of the prompt outcry testimony andto testimony about an uncharged crime (see People v Graves, 85 NY2d 1024, 1026-1027[1995] [appellate claim on different ground from trial objection was unpreserved]), or to his dulyexecuted, open-court jury waiver (see People v Johnson, 51 NY2d 986 [1980]), and wedecline [*2]to review them in the interest of justice. As analternative holding, we find no basis for reversal.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Acosta,Renwick, Moskowitz and Kahn, JJ.