| People v Chess |
| 2018 NY Slip Op 04222 [162 AD3d 1577] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael T. Chess, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
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.), renderedDecember 11, 2013. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree (three counts) and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of three counts of rape in the first degree (Penal Law § 130.35 [1]) androbbery in the first degree (§ 160.15 [3]) and, in appeal No. 2, defendant appealsfrom a judgment convicting him upon the same jury verdict of two counts of rape in the firstdegree (§ 130.35 [1]), menacing in the second degree (§ 120.14 [1]),and two counts of petit larceny (§ 155.25). We note at the outset that defendant'scontentions apply to both appeals unless specified otherwise herein. We reject defendant'scontention that Supreme Court abused its discretion in refusing to recuse itself (see People v Hazzard, 129 AD3d1598, 1598 [4th Dept 2015], lv denied 26 NY3d 968 [2015]). Where, as here,"recusal is sought based upon 'impropriety as distinguished from legal disqualification, the judge. . . is the sole arbiter' " of whether to grant such a motion (People vMoreno, 70 NY2d 403, 406 [1987]). Here, defendant made no showing that the courtdisplayed actual bias in its evidentiary rulings (see People v McCray, 121 AD3d 1549, 1551 [4th Dept 2014],lv denied 25 NY3d 1204 [2015]). We further reject defendant's contention that the court'sremarks during the first trial, which ended in a mistrial, were indicative of bias against defendantthat carried over to the second trial (seegenerally People v Walker, 100 AD3d 1522, 1523 [4th Dept 2012], lv denied 20NY3d 1104 [2013]).
Defendant next contends that the court abused its discretion in denying his requests forsubstitution of counsel. We reject that contention. The determination "[w]hether counsel issubstituted is within the 'discretion and responsibility' of the trial judge . . . , and acourt's duty to consider such a motion is invoked only where a defendant makes a 'seeminglyserious request[ ]' " (People vPorto, 16 NY3d 93, 99-100 [2010]; see People v Dodson, 30 NY3d 1041, 1042 [2017]). Defendant'sfirst request for new counsel was based on broad complaints that were insufficient to trigger thecourt's duty to inquire (see People vJones, 149 AD3d 1576, 1577-1578 [4th Dept 2017], lv denied 29 NY3d 1129[2017]; People v Correa, 145 AD3d1640, 1640-1641 [4th Dept 2016]). In any event, we conclude that the court conducted therequisite "minimal inquiry" to determine whether substitution of counsel was warranted(People v Sides, 75 NY2d 822, 825 [1990]). The court "allowed defendant to air hisconcerns about defense counsel, and . . . reasonably concluded that defendant'svague and generic objections had no merit or substance" (People v Linares, 2 NY3d 507, 511 [2004]), and "properlyconcluded that defense counsel was 'reasonably likely to afford . . . defendanteffective assistance' of counsel" (Peoplev Bradford, 118 AD3d 1254, 1255 [4th Dept 2014], lv denied 24 NY3d 1082[2014]). Defendant's second and third requests for new counsel " '[a]t most,. . . evinced disagreements with counsel over strategy . . . , which werenot sufficient grounds for substitution' " (Bradford, 118 AD3d at 1255; see People v Jones, 107 AD3d1584, 1585 [4th Dept 2013], lv denied 22 NY3d 1088 [2014], deniedreconsideration 23 NY3d 1021 [2014]). For example, defendant complained that defensecounsel failed to make a bail application, despite the fact that defendant committed many of thecrimes charged in appeal No. 2 when he was out on bail while a retrial was pending for thecharges in appeal No. 1. The court noted that it told counsel and defendant many times that anybail application would have been futile.
We reject defendant's contention that the court erred in permitting him to proceed pro se atthe start of the second trial. In order for a defendant's waiver of the right to counsel to beknowing, voluntary, and intelligent, the court must "undertake a searching inquiry designed toinsur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding withoutcounsel" (People v Crampe, 17 NY3d 469, 481 [2011] [internal quotation marksomitted]), and we conclude that the court conducted that inquiry before determining that thewaiver was knowing, voluntary, and intelligent. Contrary to defendant's contention, his request toproceed pro se was not equivocal simply because it was "preceded by an unsuccessful request fornew counsel" (People v Lewis, 114AD3d 402, 404 [1st Dept 2014]; seePeople v Malone, 119 AD3d 1352, 1354 [4th Dept 2014], lv denied 24 NY3d1003 [2014]). We reject defendant's further contention that the court erred in failing to grant himan adjournment to give him more time to prepare for the trial (see People v Hickman, 177AD2d 739, 739 [3d Dept 1991], lv denied 79 NY2d 920 [1992]).
Contrary to defendant's contention, the court properly admitted evidence of certain allegedbad acts by defendant that were relevant to his intent to commit the crimes herein (see generally People v Cass, 18 NY3d553, 561-562 [2012]). Defendant's contention that the court should have limited theMolineux evidence to the crimes charged in appeal No. 1 is not preserved for our review(see generally People v Williams,107 AD3d 1516, 1516 [4th Dept 2013], lv denied 21 NY3d 1047 [2013]), as is hiscontention that the court failed to issue an order on the People's motion for consolidation, and wedecline to exercise our power to review those contentions as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Contrary to defendant's contention, the court's failureto issue an order on the consolidation motion does not constitute a mode of proceedings error (see generally People v Thomas, 28AD3d 239, 239 [1st Dept 2006], lv denied 6 NY3d 898 [2006]; People vOlds, 269 AD2d 849, 849 [4th Dept 2000]).
We reject defendant's contention that the court abused its discretion in denying his motion fora mistrial after a sworn juror was removed, upon defendant's consent, as grossly unqualified.Although the court was incorrect in believing that granting the motion would have led to theapplication of double jeopardy (see People v Ferguson, 67 NY2d 383, 388 [1986]), wereject defendant's contention that this was the court's sole ground for denying the motion. Rather,the record establishes that the court properly concluded that there was no basis for a mistrialinasmuch as the trial could proceed with just one alternate juror (see CPL 270.30 [1];People v Ashley, 145 AD2d 782, 783 [3d Dept 1988]).
Defendant contends that the court erred in sua sponte exercising a peremptory challenge ondefendant's behalf to excuse a prospective juror. Upon our review of the record, we conclude thatdefendant, who was proceeding pro se at the time, in fact impliedly requested that challenge afterconsulting with standby counsel. We reject defendant's further contention that the court abusedits discretion in sua sponte excusing a juror for cause. The court's questions showed that theprospective juror had "a state of mind that [was] likely to preclude him from rendering animpartial verdict based upon the evidence adduced at the trial" (CPL 270.20 [1] [b]; seePeople v Vargas, 88 NY2d 363, 379 [1996]).
With respect to appeal No. 1, we reject defendant's contention that the court erred in failingto suppress his statements to a police officer. We agree with the court that defendant was not incustody where, as here, he was not handcuffed, he agreed to sit in the back of the police vehicle,and the investigatory questioning was brief (see People v Davis, 229 AD2d 969, 969-970[4th Dept 1996], lv denied 88 NY2d 1020 [1996]). With respect to appeal No. 2, wereject defendant's contention that the conviction of one of the two counts of both rape in the firstdegree and petit larceny is not supported by legally sufficient evidence (see People vBleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light of theelements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict in appeal No. 2 is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Finally, we conclude that the sentence in each appeal is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Lindley, DeJoseph and Curran, JJ.