| People v Howard |
| 2019 NY Slip Op 06545 [175 AD3d 1620] |
| September 12, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason Howard, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered March 3,2017 in Albany County, upon a verdict convicting defendant of the crimes of strangulation in thesecond degree and sexual abuse in the first degree.
Defendant was charged by indictment with burglary in the second degree, criminalobstruction of breathing or blood circulation, three counts of sexual abuse in the first degree,strangulation in the second degree and petit larceny. These charges stemmed from two incidentsthat occurred between defendant and the victim—who were in a nonexclusive sexualrelationship. Defendant thereafter filed a pro se motion to dismiss the indictment claiming that hewas not afforded the opportunity to testify in front of the grand jury and that his right to a speedytrial was violated. Supreme Court declined to address the pro se motion and defendant wassubsequently convicted, after a jury trial, of strangulation in the second degree and one count ofsexual abuse in the first degree. Defendant was thereafter sentenced, as a second felony offender,to a prison term of seven years, to be followed by five years of postrelease supervision, for thestrangulation conviction and to a consecutive prison term of seven years, to be followed by 10years of postrelease supervision, for the sexual abuse conviction. Defendant appeals, and weaffirm.
We are unpersuaded by defendant's assertion that Supreme Court erred by declining to ruleon defendant's pro se motion to dismiss the indictment. "Because defendants are not entitled tohybrid representation, courts may refuse to recognize any efforts by a counseled defendant to acton his or her own behalf" (People vAlsaifullah, 96 AD3d 1103, 1103 [2012] [citation omitted], lv denied 19 NY3d994 [2012]; see People v Rodriguez, 95 NY2d 497, 501 [2000]). It is uncontroverted thatdefendant had counsel at the time that he filed his pro se motion to dismiss the indictment.Accordingly, it was within Supreme Court's discretion to decline to address defendant's pro semotion (see People v Rodriguez, 95 NY2d at 502; People v Alsaifullah, 96 AD3dat 1103).
Defendant's remaining arguments are unpreserved. Specifically, defendant's contention thathis conviction for sexual abuse in the first degree is not supported by legally sufficient evidenceis unpreserved for our review given his failure to advance the specific ground he now relies uponin his trial motion to dismiss (see Peoplev Van Alphen, 167 AD3d 1076, 1077 [2018], lv denied 32 NY3d 1210 [2019];People v Maldonado, 165 AD3d1486, 1487 [2018]). Likewise, defendant's argument that the jury's verdict convicting him ofstrangulation in the second degree was inconsistent given the acquittal on the charge of criminalobstruction of breathing or blood circulation was not preserved for our review through anappropriate, timely objection before the jury was discharged (see People v Maeweather, 172 AD3d 1646, 1649 [2019]; People v Poulin, 159 AD3d 1049,1052-1053 [2018], lv denied 32 NY3d 940 [2018]).
Garry, P.J., Egan Jr., Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.