| People v Wingate |
| 2020 NY Slip Op 03398 [184 AD3d 738] |
| June 17, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Blake Wingate, Appellant. |
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant, and appellantpro se.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,and Danielle M. O'Boyle of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C.Holder, J.), rendered June 16, 2015, convicting him of robbery in the second degree (two counts),robbery in the third degree (two counts), and assault in the second degree (two counts), after anonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of robbery inthe third degree, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
The defendant allegedly robbed and assaulted two elderly women in separate incidents. Thecomplainants identified the defendant in a police lineup and at trial. On appeal, the defendantcontends, inter alia, (1) that the Supreme Court improvidently exercised its discretion in denyinghim his right to self-representation, (2) that his waiver of his right to a jury trial was insufficient,(3) that the court violated his Sixth Amendment right of confrontation by limiting his attorney'scross-examination of the complainants, and (4) that the testimony of a police detectiveimproperly bolstered the complainants' identification testimony.
"A defendant in a criminal case may invoke the right to defend pro se provided: (1) therequest is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver ofthe right to counsel, and (3) the defendant has not engaged in conduct which would prevent thefair and orderly exposition of the issues" (People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Gregory, 163 AD3d847, 848-849 [2018], affd 33NY3d 1017 [2019]). A defendant may forfeit the right to proceed pro se "by engaging indisruptive or obstreperous conduct 'calculated to undermine, upset or unreasonably delay theprogress of the trial' " (People v Anderson, 133 AD2d 120, 121 [1987], quotingPeople v McIntyre, 36 NY2d at 18). Contrary to the defendant's contention, with respectto the third prong of the McIntyre test, the record supports the Supreme Court'sdetermination that the defendant engaged in "conduct which would prevent the fair and orderlyexposition of the issues" (People v McIntyre, 36 NY2d at 17; see People vGregory, 33 NY3d 1017, 1018 [2019]). Under the circumstances, the court did notimprovidently exercise its discretion in denying the defendant's request to proceed pro se (seePeople v Gregory, 33 NY3d at 1018).
The defendant's contention that his waiver of his right to a jury trial was invalid isunpreserved for appellate review (see CPL 470.05 [2]; People v Magnano, 77NY2d 941, 942 [1991]; People v Johnson, 51 NY2d 986, 987 [1980]; People v Badden, 13 AD3d 463,463 [2004]; People v Brunson, 307 AD2d 323, 324 [2003]). Under the circumstances, wedecline to reach this issue in the exercise of our interest of justice jurisdiction (see People v Lopez, 173 AD3d528, 528 [2019]; People vMorrison, 110 AD3d 1380, 1381 [2013]; People v Sierra, 143 AD2d 1065, 1065[1988]).
The defendant's contention that the Supreme Court violated his Sixth Amendment right ofconfrontation by limiting his attorney's cross-examination of the complainants is without merit.Although a criminal defendant is guaranteed the right to confront adverse witnesses throughcross-examination (see US Const 6th Amend; NY Const, art I, § 6), thatright is not unfettered (see People vCaballero, 137 AD3d 929, 930 [2016]; People v Francisco, 44 AD3d 870, 870 [2007]). "The trial court hasbroad discretion to limit the scope of cross-examination when the questions are irrelevant or onlymarginally relevant, concern collateral issues, or pose a danger of misleading the jury"(People v Francisco, 44 AD3d at 870; see People v Gittens, 178 AD3d 1070, 1070 [2019]). Here, thedefendant was afforded the opportunity to challenge the credibility and accuracy of thecomplainants' testimony, and the court providently exercised its discretion to the extent that itlimited defense counsel's cross-examination of those two witnesses (see People vFrancisco, 44 AD3d at 870-871; People v Gonzalez, 170 AD2d 620, 620-621[1991]). Under the circumstances, the defendant was not deprived of his right to confrontation(see People v Wright, 160 AD3d667, 670 [2018]).
The defendant's contention that the testimony of a police detective improperly bolstered thecomplainants' identification testimony is unpreserved for appellate review (see CPL470.05 [2]; People v Baez, 172AD3d 893, 894 [2019]; People vLocenitt, 157 AD3d 905, 906-907 [2018]; People v Bonilla, 151 AD3d 735, 736 [2017]). Under thecircumstances, we decline to review that contention in the exercise of our interest of justicejurisdiction (see People v Frazier,127 AD3d 1229, 1230 [2015]; People v Thomas, 85 AD3d 1572, 1573 [2011], affd 21NY3d 226 [2013]; People v Wright,77 AD3d 691, 691 [2010]).
As the People concede, the two counts of robbery in the third degree were concurrentinclusory counts of the two counts of robbery in the second degree (see CPL 300.30 [4];People v Hutson, 43 AD3d 959,959 [2007]; People v Gibson, 295 AD2d 529, 530 [2002]). A verdict of guilt upon thegreater count is deemed a dismissal of every lesser count (see CPL 300.40 [3]).Accordingly, we vacate the convictions of robbery in the third degree and the sentences imposedthereon, and dismiss those counts of the indictment (see People v Lee, 39 NY2d 388, 390[1976]).
The defendant's contention, raised in his pro se supplemental brief, that the police lackedprobable cause to arrest him is unpreserved for appellate review (see CPL 470.05 [2]; People v Hosannah, 178 AD3d1074 [2019]; People vWilliams, 160 AD3d 665, 666 [2018]). The defendant's further contention, raised pro se,that his waiver of his Miranda rights (see Miranda v Arizona, 384 US 436 [1966])was invalid is also unpreserved for appellate review (see CPL 470.05 [2]; People v Panton, 27 NY3d 1144,1144-1145 [2016]; People v Waters,159 AD3d 1021, 1021 [2018]). Under the circumstances, we decline to reach these issues inthe exercise of our interest of justice jurisdiction.
The defendant's contention, raised in his pro se supplemental brief, that he was denied theeffective assistance of counsel at trial is based, in part, on matter appearing on the record and, inpart, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance"(People v Maxwell, 89 AD3d1108, 1109 [2011]; see People vEvans, 16 NY3d 571, 575 n 2 [2011]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we declineto review the claim on this direct appeal (see People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The defendant's contention, raised pro se, that his appellate counsel is ineffective, is notreviewable on direct appeal (see Peoplev Brown, 116 AD3d 1062, 1063 [2014]). The appropriate avenue for the defendant toraise the issue of ineffective assistance of appellate counsel is to seek a writ of error coram nobisin this Court (see People v Brun, 15NY3d 875, 876 [2010]; People v Brown, 116 AD3d at 1063).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Austin, J.P., Miller, Connolly and Brathwaite Nelson, JJ., concur.