| People v Carew |
| 2018 NY Slip Op 08947 [167 AD3d 1032] |
| December 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrance Carew, Appellant. |
Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (JoelBlumenfeld, J.), rendered December 7, 2015, convicting him of attempted murder in the seconddegree, attempted robbery in the first degree, and criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In the second round of jury selection, after the 12th juror was seated, the Supreme Courtgranted the defendant's challenge, made pursuant to Batson v Kentucky (476 US 79[1986]), to the prosecutor's use of peremptory challenges for two potential jurors in the firstround of jury selection, and offered to seat those potential jurors as alternates. However, after itwas discovered that the two potential jurors had already been excused, jury selection continued,without the court imposing any alternative remedy. As defense counsel did not request anyalternative remedy when it became apparent that the two potential jurors at issue had beenexcused, and did not object when jury selection continued thereafter, the defendant's contentionthat the court erred in failing to impose any alternative remedy is unpreserved for appellatereview (see CPL 470.05 [2]; People v James, 99 NY2d 264, 266 [2002];People v Hopkins, 76 NY2d 872, 873 [1990]; People v Butler, 15 AD3d 415, 415-416 [2005]). Moreover,contrary to the defendant's contention, the alleged error was not so fundamental as to constitute amode of proceedings error exempting him from the rules of preservation (see People v Mack, 27 NY3d 534,541 [2016]; People v James, 99 NY2d 264, 272 [2002]; see also People v Augustus, 163 AD3d981 [2018]; People v Wilson,163 AD3d 881 [2018]; People vCasanova, 62 AD3d 88, 91 [2009]). We decline to review the defendant's contention inthe exercise of our interest of justice jurisdiction.
There is no merit to the defendant's contention that the Supreme Court improperly denied hisrequest for substitution of assigned counsel without making a sufficient inquiry to determine thevalidity of his claim. The court made a sufficient inquiry into the defendant's criticisms ofassigned counsel, provided a solution to address the defendant's concerns, and thereafter, ineffect, providently denied the defendant's request for substitution of assigned counsel (see People v Porto, 16 NY3d 93,100-101 [2010]; People v King, 161AD3d 772 [2018]; People vSmart, 142 AD3d 513, 514 [2016], affd 29 NY3d 1098 [2017]; People v Hampton, 113 AD3d1131, 1132 [2014]).
The defendant's contention that the DNA evidence presented at trial violated his rights underthe Confrontation Clause of the Sixth Amendment of the United States Constitution (see People v John, 27 NY3d 294[2016]) is unpreserved for appellate review, and we decline to review this issue in the exercise ofour interest of justice jurisdiction.
The defendant's contention that he was denied the effective assistance of counsel is withoutmerit. A review of the record in its totality establishes that defense counsel provided meaningfulrepresentation (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54NY2d 137 [1981]). The defendant has failed to "demonstrate the absence of strategic or otherlegitimate explanations for counsel's alleged shortcomings" (People v Benevento, 91NY2d at 712 [internal quotation marks and citation omitted]; see People v Taylor, 1 NY3d 174, 176 [2003]). Roman, J.P.,Hinds-Radix, Maltese and LaSalle, JJ., concur.