| People v Spencer |
| 2020 NY Slip Op 04065 [185 AD3d 1440] |
| July 17, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Devante Spencer, Appellant. |
Norman P. Effman, Public Defender, Warsaw (Leah R. Nowotarski of counsel), fordefendant-appellant.
Sandra Doorley, Special Prosecutor, Rochester (Wendy Lehmann of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), renderedDecember 20, 2017. The judgment convicted defendant upon a jury verdict of gang assault in thefirst degree, assault in the first degree and promoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofgang assault in the first degree (Penal Law § 120.07), assault in the first degree(§ 120.10 [1]), and promoting prison contraband in the first degree(§ 205.25 [2]). Although defendant was offered the opportunity to plead guilty toone count of assault in the second degree in exchange for a determinate term of seven years'incarceration to run concurrently to the much longer sentence that he was already serving,defendant rejected that offer. After trial, defendant was sentenced to a combination ofconsecutive and concurrent sentences that aggregated to 23 to 26 years of incarceration, to runconsecutively to any undischarged term of incarceration.
Defendant contends that the jury instruction on accessorial liability given by County Courtfailed to convey that it applied to the count of assault in the first degree instead of the count ofpromoting prison contraband in the first degree. By failing to object to the "jury charge as given,"however, defendant failed to preserve his contention for our review (People v Clark, 142 AD3d 1339,1340 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]; see People v Keegan, 133 AD3d1313, 1315 [4th Dept 2015], lv denied 27 NY3d 1152 [2016]; see generallyCPL 470.05 [2]). In any event, we conclude that "the charge as a whole adequately conveyedto the jury the appropriate standards" (People v Adams, 69 NY2d 805, 806 [1987]) anddid not otherwise change the prosecutor's theory of the case (see generally People vRivera, 84 NY2d 766, 769 [1995]; People v Duncan, 46 NY2d 74, 79-80[1978]).
We reject defendant's further contention that the court erred in refusing his request for asubstitution of assigned counsel. The court fulfilled its duty to inquire into those complaintsabout defense counsel that were supported by sufficiently specific factual allegations and were ofsufficient seriousness (see generallyPeople v Porto, 16 NY3d 93, 99-100 [2010]; People v Medina, 44 NY2d 199,207 [1978]) and did not abuse its discretion in determining that defendant had not established"good cause for substitution" (People v Sides, 75 NY2d 822, 824 [1990]). Defendant'sremaining complaints consisted of vague and conclusory allegations of conflicts anddisagreements with defense counsel that were "not sufficiently specific to require a minimalinquiry by the court, and certainly did not warrant a grant of his [request]" (Porto, 16NY3d at 101).
Defendant next contends that his attorney was ineffective in failing to, among other things,adequately communicate with him about the People's plea offer. That contention involves"discussions between defendant and his attorney outside the record on appeal, and it musttherefore be raised by way of a motion pursuant to CPL 440.10" (People v Manning, 151 AD3d1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; see People v Dale, 142 AD3d1287, 1290 [4th Dept 2016], lv denied 28 NY3d 1144 [2017]; People v Stachnik, 101 AD3d1590, 1591 [4th Dept 2012], lv denied 20 NY3d 1104 [2013]). Although defendanthas a variety of other complaints about defense counsel's performance at trial, viewing theevidence, the law, and the circumstances of this case in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Present—Peradotto, J.P., Lindley, Curran,Bannister and DeJoseph, JJ.