| People v Coffee |
| 2017 NY Slip Op 04986 [151 AD3d 1837] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Shawn J.Coffee, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Shawn J. Coffee, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedApril 24, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa controlled substance in the third degree, criminal possession of a weapon in the second degreeand criminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a weapon in the second degree(§ 265.03 [3]). Contrary to defendant's contention, County Court did not abuse itsdiscretion in denying his request for substitution of counsel (see People v Correa, 145 AD3d 1640, 1640 [2016]). Defendantfailed to show good cause for substitution inasmuch as his claims that defense counsel wasineffective were without merit (seePeople v Linares, 2 NY3d 507, 510-511 [2004]; People v Johnson, 114 AD3d 1132, 1133 [2014], lv denied24 NY3d 961 [2014]). We reject defendant's further contention that he was improperlypermitted to proceed pro se. The record establishes that defendant made a "knowing, voluntaryand intelligent waiver of the right to counsel" (People v Arroyo, 98 NY2d 101, 103[2002]). Defendant's request was unequivocal and was not made simply in the alternative toseeking substitute counsel (see People vPaulin, 140 AD3d 985, 987 [2016], lv denied 28 NY3d 935 [2016]; cf. People v Gillian, 8 NY3d 85,88 [2006]). The court did not abuse its discretion in declining defendant's request for standbycounsel (see People v Brown, 6AD3d 1125, 1126 [2004], lv denied 3 NY3d 657 [2004]). "A criminal defendant hasno Federal or State constitutional right to hybrid representation . . . While the SixthAmendment and the State Constitution afford a defendant the right to counsel or toself-representation, they do not guarantee a right to both . . . Thus, a defendant whoelects to exercise the right to self-representation is not guaranteed the assistance of standbycounsel during trial" (People v Rodriguez, 95 NY2d 497, 501 [2000]). Contrary todefendant's contention, he was afforded effective assistance of counsel during the period ofdefense counsel's representation (see Brown, 6 AD3d at 1126).
Defendant's contention that the court gave an improper instruction to the jury with respect todrawing an inference from defendant's exercise of his right to represent himself is not preservedfor our review (see People v Quinones, 235 AD2d 437, 437 [1997], lv denied 90NY2d 862 [1997]). In any event, defendant's contention lacks merit. The variation from thepattern jury charge "was too inconsequential to warrant reversal or to have detracted from theneutral tone of the charge" (People v Webb, 215 AD2d 704, 705 [1995], lv denied86 NY2d 804 [1995]; see Quinones, 235 AD2d at 437). Defendant also failed to preservefor our review his contention that the court violated CPL 300.10 (4) (see People v Armstrong, 134 AD3d1401, 1402 [2015], lv denied 27 NY3d 962 [2016]), and it is without merit in anyevent inasmuch as, prior to defendant's summation, the court informed [*2]defendant of the charges that would be submitted to the jury.
Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct (see People vPeterkin, 12 AD3d 1026, 1028 [2004], lv denied 4 NY3d 766 [2005]). Wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe. We haveexamined defendant's remaining contentions in his main and pro se supplemental briefs andconclude that they are without merit. Present—Centra, J.P., Peradotto, Carni, NeMoyerand Curran, JJ.