| People v King |
| 2018 NY Slip Op 03148 [161 AD3d 772] |
| May 2, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Brandon King, Appellant. |
Paul Skip Laisure, New York, NY (Steven R. Bernhard and Alexis Ascher of counsel), forappellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, Jonathan V. Brewer, and Antara D. Kanth of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (GregoryLasak, J.), rendered October 2, 2013, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
In the early morning hours of September 13, 2008, in Jamaica, Queens, the defendant and thedecedent, both pimps in that neighborhood, had a dispute over a juvenile female, A.R., whom thedefendant claimed was his prostitute. The altercation escalated when the decedent punched thedefendant in the face, whereupon the defendant shot the decedent multiple times with asemiautomatic pistol and fled the scene in a taxicab. The defendant picked up A.R. and anotherprostitute, M.C., and had the cab drive them to a hotel in Nassau County. At the hotel later thatday, the defendant was arrested by Nassau County police for committing a criminal sex actagainst A.R., who was 14 years old at the time. The defendant was taken to a police precinct inNassau County, where he gave the police two statements, reduced to writing by the detectiveswho interviewed him. In the first statement, the defendant denied having shot the decedent, but inthe second statement, the defendant stated that he had shot the decedent after a struggle.
At trial, the People advised that they intended both statements to be read to the jury in theirentirety by the Nassau County detective who had elicited and recorded them. Prior to thestatements being read to the jury, the defendant moved to redact two comments which appearedin each of the two statements. The first comment was to the effect that the defendant asked M.C.to perform an oral sex act on him, and she did. The second comment was that A.R. then alsoperformed oral sex on him and the defendant didn't stop her because he thought A.R. was 18years old.
The Supreme Court granted the defendant's request to the extent of redacting the secondcomment, which pertained to A.R., a minor at the time, since having oral sex with her was acrime. The defendant contends that the court erred in refusing to also redact the first comment,[*2]which pertained to M.C. performing oral sex on him, becausethat comment was irrelevant to the crime charged, and only served to prejudice him. Wedisagree. Contrary to the People's contention that this issue was not preserved for appellatereview, the "defendant's specific application and the court's equally specific ruling were sufficientto preserve the issue for appeal" (People v Rosen, 81 NY2d 237, 245 [1993]; seeCPL 470.05 [2]). However, the court providently exercised its discretion in declining to redactthat part of the statement that pertained to M.C., who later testified at trial on behalf of thedefendant that she never saw the defendant with a gun. M.C.'s testimony was contradicted byA.R., who testified at trial on behalf of the People's case, inter alia, that before the decedent wasshot, she saw the defendant lift up his shirt to reveal a gun in the defendant's waistband, and thatthe defendant had admitted to A.R. and M.C. that he had shot the decedent. The words at issuehere demonstrated to the jury the nature of the relationship between the defendant and M.C.,which was relevant to determining the relative credibility of A.R. and M.C., whose testimonyconflicted. Since the probative value of the evidence outweighed any prejudice to the defendant,the court properly exercised its discretion in declining to redact it (see People v Thomas, 12 AD3d383, 384 [2004]).
The defendant contends in his pro se supplemental brief that his motion for appointment ofnew counsel should have been granted. He argues that his attorney had a conflict which resultedin the defendant being deprived of the right to testify at a pretrial hearing. This contention iswithout merit.
"The right of an indigent criminal defendant to the services of a court-appointed lawyer doesnot encompass a right to appointment of successive lawyers at defendant's option" (People vSides, 75 NY2d 822, 824 [1990]; see People v Washington, 25 NY3d 1091, 1095 [2015]). Rather,"[w]hether counsel is substituted is within the discretion and responsibility of the trial judge, anda court's duty to consider such a motion is invoked only where a defendant makes a seeminglyserious request" (People v Porto, 16NY3d 93, 99-100 [2010] [internal quotation marks, citation and brackets omitted]). "When adefendant's request on its face suggests a serious possibility of irreconcilable conflict withdefense counsel, the trial court is obliged to make some minimal inquiry to determine whetherthe request has a genuine basis" (Peoplev Stevenson, 36 AD3d 634, 634 [2007]; see People v Sides, 75 NY2d at 824)."Although defendants have no choice in selecting their assigned counsel, trial courts shouldsubstitute counsel when a defendant can demonstrate 'good cause' " (People v Linares, 2 NY3d 507,510 [2004] [footnote omitted], quoting People v Medina, 44 NY2d 199, 207 [1978]).
Here, the Supreme Court's denial of the defendant's motion to substitute counsel was aprovident exercise of discretion. The court satisfied its obligation of making "some minimalinquiry to determine whether the request ha[d] a genuine basis" (People v Stevenson, 36AD3d at 634) by asking the defendant, after looking over the motion itself, if he had anything toadd to the "boilerplate" motion he had submitted. After hearing the defendant's explanation thatthe issue was about counsel's opposition to the defendant testifying at the pretrial hearing andother "little disagreements" between him and his attorney, the court properly determined that thedefendant had failed to establish good cause to substitute counsel.
With regard to the defendant's contention that he was denied his right to testify at the pretrialhearing, the record shows that after hearing the Supreme Court's explanation as to how testifyingcould expose him to damaging cross-examination, and after further consultation with hisattorney, the defendant himself confirmed to the court that he had "thought better of it" and nolonger wished to testify at the hearing. There is no evidence in the record that the court, ordefense counsel, had compelled the defendant to change his mind.
The defendant's claim of ineffective assistance of counsel "involves matter dehors the recordand, thus, is not properly raised on a direct appeal from the judgment" (People v Hernandez, 125 AD3d885, 887 [2015]; see People vMiller, 81 AD3d 854, 855 [2011]; People v Staropoli, 49 AD3d 568, 568-569 [2008]). Thedefendant's contention that the People used testimony it knew to be perjured is similarly based onmatter dehors the record and cannot be reached on direct appeal.
Lastly, in his summation, the prosecutor properly marshaled the evidence based on [*3]the People's view of the facts (see People v Anderson, 29 NY3d 69, 75 [2017]; CPL 260.30 [9]),and his comments, taking into account the defense summation, "did not exceed the bounds ofpermissible rhetorical comment" (People v Ayala, 165 AD2d 878, 879 [1990]; seePeople v Wilkerson, 162 AD2d 568 [1990]). Leventhal, J.P., Cohen, Maltese and Barros, JJ.,concur.