| People v Brunner |
| 2017 NY Slip Op 05313 [151 AD3d 651] |
| June 29, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Maurice Brunner, Appellant. |
Leonard J. Levenson, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at pretrialproceedings; Gregory Carro, J., at jury trial and sentencing), rendered March 3, 2015, convictingdefendant of robbery in the second degree, burglary in the second and third degrees and criminalpossession of stolen property in the fifth degree, and sentencing him, as a persistent violentfelony offender, to an aggregate term of 16 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. There was ample evidence to support thephysical injury element of second-degree robbery and burglary. The jury was entitled to credit thevictim's testimony that he sustained injuries to his tooth, left arm, lower back, and right kneewhen he fell while attempting to escape from defendant, that he sought medical treatment on theday of the incident, and that pain persisted for months after the incident (see People vGuidice, 83 NY2d 630, 636 [1994]).
The court did not deprive defendant of his right to represent himself, because defendantnever made a clear and unequivocal request to proceed pro se (see People v LaValle, 3 NY3d 88,106 [2004]; People v Cornelius, 132AD3d 495 [1st Dept 2015], lv denied 26 NY3d 1087 [2015]; People v Kelly, 14 AD3d 390, 391[1st Dept 2005], lv denied 4 NY3d 832 [2005]), and to the extent he could be viewed asrequesting to represent himself, he abandoned the application (see People v Hirschfeld,282 AD2d 337, 338-339 [1st Dept 2001], lv denied 96 NY2d 919 [2001], certdenied 534 US 1082 [2002]).
The court did not deprive defendant of his statutory right to plead guilty when it refused toallow him to do so while the People were in the process of obtaining a timely supersedingindictment adding charges not contained in the original indictment. Under CPL 220.10 (2), adefendant "may as a matter of right enter a plea of 'guilty' to the entire indictment." However,under CPL 200.80, the People may file a superseding indictment "at any time before entry of aplea of guilty to an indictment or commencement of a trial," and a defendant may not exercise hisor her right under CPL 220.10 (2) in a way that would nullify the People's rights under CPL [*2]200.80 (see People v Barkin, 49 NY2d 901 [1980]). ThePeople met the statutory requirements for superseding an indictment, and, contrary to defendant'sassertion, they were not also required to show good cause, reasonableness or the absence ofprejudice. Concur—Sweeny, J.P., Renwick, Andrias, Kapnick and Kahn, JJ.