| People v Terborg |
| 2017 NY Slip Op 08941 [156 AD3d 1320] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1](December 22, 2017)
| The People of the State of New York, Respondent, v Jeffrey J.Terborg, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Jeffrey J. Terborg, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedFebruary 28, 2013. The judgment convicted defendant, upon a jury verdict, of criminalpossession of stolen property in the fifth 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 ofcriminal possession of stolen property in the fifth degree (Penal Law § 165.40). Wereject defendant's contention in his main and pro se supplemental briefs that Supreme Court(Doyle, J.) abused its discretion in disqualifying his assigned counsel upon being informed thatthe Public Defender's Office had represented various individuals who were potential prosecutionwitnesses in one of several other pending prosecutions against defendant (see People v Watson, 26 NY3d620, 624-625 [2016]; People vCarncross, 14 NY3d 319, 326-330 [2010]). We conclude that the court properly decidednot to accept defendant's attempted waiver in these circumstances and instead chose to protectdefendant's right to effective assistance of counsel in order to ensure a fair trial (seeWatson, 26 NY3d at 627). The court also appropriately considered the interest of judicialeconomy and the integrity of the criminal process in determining that defendant should berepresented by one attorney for all of the pending prosecutions to avoid conflicting advice andpotential conflicts of interest (see generally People v Tineo, 64 NY2d 531, 537 [1985];People v Gayle, 167 AD2d 927, 927 [4th Dept 1990], lv denied 77 NY2d 838[1991]).
We reject defendant's further contention in his main and pro se supplemental briefs thatSupreme Court (Renzi, J.) abused its discretion in refusing to recuse itself from conducting thetrial because it had presided over several prior criminal prosecutions of defendant and madenegative comments about his character and criminality during one of those proceedings. "Absenta legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter ofrecusal" (People v Moreno, 70 NY2d 403, 405 [1987]). Here, there was no legaldisqualification, and defendant otherwise made no showing that the court's alleged bias affectedthe result of the trial (see id. at 407; People v Nenni, 269 AD2d 785, 786 [4thDept 2000], lv denied 95 NY2d 801 [2000]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention in his main and pro se supplementalbriefs that the verdict is against the weight of the evidence (see People v Jackson, 66 AD3d 1415, 1416 [4th Dept 2009];see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Even assuming, arguendo,that a different verdict would not have been unreasonable, we cannot conclude that the jury failedto give the evidence the weight it should be accorded (see People v Ohse, 114 AD3d 1285, 1286-1287 [4th Dept 2014],lv denied 23 NY3d 1041 [2014]; see generally Bleakley, 69 NY2d at 495).
Defendant's contention in his main brief that he was denied a fair trial by prosecutorialmisconduct is unpreserved for our review inasmuch as the court sustained trial counsel'sobjections to the prosecutor's comments and gave curative instructions in two instances that, inthe absence of further objection or a request for a mistrial, "must be deemed to have corrected theerror[s] to the defendant's satisfaction" (People v Heide, 84 NY2d 943, 944 [1994]; see People v Acosta, 134 AD3d1525, 1526 [4th Dept 2015], lv denied 27 NY3d 990 [2016]). In any event, weconclude that "[t]he alleged misconduct was 'not so egregious as to deprive defendant of a fairtrial' " (People v Astacio,105 AD3d 1394, 1396 [4th Dept 2013], lv denied 22 NY3d 1154 [2014]).
To the extent that defendant's contention in his main brief that he was denied effectiveassistance of counsel is based upon the alleged failure of one of his attorneys to inspect evidence,it is unreviewable on direct appeal because it involves matters outside the record and, therefore,must be raised by way of a motion pursuant to CPL article 440 (see People v Ocasio, 81 AD3d1469, 1470 [4th Dept 2011], lv denied 16 NY3d 898 [2011], cert denied 565US 910 [2011]). To the extent that defendant's claims of ineffective assistance of counsel arereviewable on the record before us, we conclude that they are without merit (see generally People v Caban, 5 NY3d143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]). It is well settled thatthe "failure to 'make a motion or argument that has little or no chance of success' " is notineffective (Caban, 5 NY3d at 152), and defendant otherwise has failed to show theabsence of strategic or other legitimate explanations for his attorneys' alleged shortcomings(see generally People v Benevento, 91 NY2d 708, 712 [1998]).
Defendant contends in his main brief that he was denied a fair trial by the cumulative effectof the alleged errors previously addressed herein, together with various other alleged errors thatare not preserved for our review (see CPL 470.05 [2]). We reject defendant's contentionwith respect to the alleged errors previously reviewed, and we decline to exercise our power toreview his contention with respect to the unpreserved alleged errors as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
Finally, we have considered defendant's remaining contentions in his pro se supplementalbrief and conclude that none warrants modification or reversal of the judgment.Present—Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.