| People v Degracia |
| 2019 NY Slip Op 05144 [173 AD3d 1199] |
| June 26, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rigoberto Degracia, Appellant. |
Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P.Griffin, J.), rendered February 3, 2016, convicting him of criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised its discretion indenying, without further inquiry, his request for new assigned counsel, made prior to the start ofjury selection, is without merit. " 'The right of an indigent criminal defendant to theservices of a court-appointed lawyer does not encompass a right to appointment of successivelawyers at defendant's option' " (People v King, 161 AD3d 772, 774 [2018], quoting People vSides, 75 NY2d 822, 824 [1990]). A trial court's duty to consider substitution arises "onlywhere [the] defendant makes a 'seemingly serious request[ ]' " (People v Porto, 16 NY3d 93, 100[2010], quoting People v Sides, 75 NY2d at 824). Here, the record does not provide abasis to conclude that the defendant's motion was based on specific factual allegations of aserious complaint about his counsel (seePeople v Stevens, 162 AD3d 1077, 1078 [2018]; People v McErlean, 149 AD3d 872, 873 [2017]; People v Ward, 121 AD3d 1026,1027 [2014]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d at 348-349), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that he was deprived of his constitutional right to due process as aresult of the Supreme Court's denial of his motion to exclude, or, alternatively, to conduct ahearing pursuant to Frye v United States (293 F 1013 [DC Cir 1923]) to determine theadmissibility of, the results of DNA testing derived from the use of the Forensic Statistical Tool(hereinafter FST), is unpreserved for appellate review (see CPL 470.05 [2]). In any event,the Supreme Court providently exercised its discretion in denying the defendant's motion. "Acourt need not hold a Frye hearing where it can rely upon previous rulings in other courtproceedings as an aid in determining the admissibility of the proffered testimony" (People v LeGrand, 8 NY3d 449,458 [2007]; see People v Gibson,163 AD3d 586, 586 [2018]; Peoplev Foster-Bey, 158 AD3d 641, 641 [2018], lv granted 32 NY3d 937 [2018]; People v Gonzalez, 155 AD3d507, 508 [2017]). Given the acceptance of FST by other New York courts at the time themotion was made (see e.g. People vGarcia, 39 Misc 3d 482 [Sup Ct, Bronx County 2013]; People v Megnath, 27 Misc 3d 405[Sup Ct, Queens County 2010]), it was not an improvident exercise of discretion to deny themotion (see People v Foster-Bey, 158 AD3d at 641; People v Gonzalez, 155AD3d at 507).
The defendant's contention that the admission of certain DNA evidence at trial violated hisrights under the Sixth Amendment's Confrontation Clause (see Crawford v Washington,541 US 36 [2004]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Webb, 163 AD3d 880,881 [2018]; People v Foster-Bey, 158 AD3d at 641), and we decline to review this issuein the exercise of our interest of justice jurisdiction.
The defendant's contention that he was deprived of the effective assistance of counsel iswithout merit. A review of the record in its totality establishes that defense counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708 [1998]; People vBaldi, 54 NY2d 137 [1981]). Moreover, the defendant has failed to "demonstrate the absenceof strategic or other legitimate explanations for counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998] [internal quotation marks omitted]; see People v Taylor, 1 NY3d 174,176 [2003]). Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.