| People v Barksdale |
| 2021 NY Slip Op 00748 [191 AD3d 1370] |
| February 5, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth B. Barksdale, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Bradley E. Keem of counsel), fordefendant-appellant.
Kenneth B. Barksdale, defendant-appellant pro se.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered April24, 2017. The judgment convicted defendant upon a jury verdict of criminal sale of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substance in thethird degree (two counts), criminal sale of a controlled substance in the fifth degree and criminalpossession of a controlled substance in the seventh degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]) and two counts of criminal possession of a controlled substance in thethird degree (§ 220.16 [1]). We affirm.
To the extent that defendant contends in his main brief that the evidence is legallyinsufficient to support the conviction, that contention is not preserved for our review (seePeople v Gray, 86 NY2d 10, 19 [1995]). Nonetheless, " 'we necessarily review theevidence adduced as to each of the elements of the crimes in the context of our review ofdefendant's challenge regarding the weight of the evidence' " raised in his main and prose supplemental briefs (People vStepney, 93 AD3d 1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968[2012]; see People v Danielson, 9NY3d 342, 349 [2007]). Here, viewing the evidence in light of the elements of the crimes ascharged to the jury (see Danielson, 9 NY3d at 349), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "[E]ven assuming, arguendo, that a different verdict would not have been unreasonable,it cannot be said that the jurors failed to give the evidence the weight it should be accorded" (People v Albert, 129 AD3d 1652,1653 [4th Dept 2015], lv denied 27 NY3d 990 [2016]; see generally Bleakley, 69NY2d at 495).
We reject defendant's contention in his main brief that he was denied effective assistance ofcounsel. Defendant's claim that defense counsel was ineffective when he did not challenge aprospective juror during jury selection is without merit because defendant " 'failed toestablish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e]prospective juror[ ]' " (People vCarpenter, 187 AD3d 1556, 1557 [4th Dept 2020]; see People v Maffei, 35 NY3d 264, 265-274 [2020]; People v Barboni, 21 NY3d 393,406-407 [2013]). Defendant further claims that, as demonstrated by on-the-record disagreementsbetween himself and defense counsel, he was denied effective assistance based on defensecounsel's decisions related to calling witnesses and introducing certain evidence. We reject thatclaim inasmuch as defendant "failed to demonstrate that those alleged errors were not strategic innature . . . , and mere disagreement with trial strategy is insufficient to establish thatdefense counsel was ineffective" (Peoplev Henry, 74 AD3d 1860, 1862 [4th Dept 2010], lv denied 15 NY3d 852 [2010];see People v Cole, 179 AD3d1505, 1507 [4th Dept 2020], lv denied 35 NY3d 1026 [2020]). To the extent thatthese claims are dependent on matters outside the record on direct appeal, "the appropriateprocedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10motion" (Maffei, 35 NY3d at 266; see People v Smith, 145 AD3d 1628, 1630 [4th Dept 2016], lvdenied 31 NY3d 1017 [2018]). Defendant's additional claim that defense counsel did notadequately challenge a search warrant is without merit inasmuch as "[t]here can be no denial ofeffective assistance of . . . counsel arising from [defense] counsel's failure to make amotion or argument that has little or no chance of success" (People v Francis, 63 AD3d 1644, 1644 [4th Dept 2009], lvdenied 13 NY3d 835 [2009] [internal quotation marks omitted]; see People v Caban, 5 NY3d 143,152 [2005]; People v Thomas, 176AD3d 1639, 1641 [4th Dept 2019], lv denied 34 NY3d 1082 [2019]). To the extentthat defendant's ineffective assistance claims in his pro se supplemental brief are reviewable onthe record before us, we conclude that they are without merit (see generally Caban, 5NY3d at 152; People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant also contends in his main brief that County Court erred in granting his midtrialrequest to proceed pro se prior to summations. We reject that contention. "A defendant in acriminal case may invoke the right to defend pro se provided: (1) the request isunequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the rightto counsel, and (3) the defendant has not engaged in conduct which would prevent the fair andorderly exposition of the issues" (People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Crespo, 32 NY3d176, 178 [2018], cert denied 589 US &mdash, 140 S Ct 148 [2019]). With respect tothe first prong, "[a]lthough the right to represent oneself is 'severely constricted' once a trial hasbegun, an otherwise untimely motion to proceed pro se may still 'be granted in the trial court'sdiscretion and . . . in compelling circumstances' " (People v Hassan, 159 AD3d 1390,1391 [4th Dept 2018], lv denied 31 NY3d 1148 [2018], quoting McIntyre, 36NY2d at 17; see Crespo, 32 NY3d at 184-185; Matter of Kathleen K. [Steven K.], 17 NY3d 380, 387 [2011]).
Here, contrary to defendant's assertion, we conclude on this record that the court did notabuse its discretion in considering and granting defendant's request despite its untimeliness(see Hassan, 159 AD3d at 1391; People v Dashnaw, 116 AD3d 1222, 1231-1232 [3d Dept 2014],lv denied 23 NY3d 1019 [2014]). Contrary to defendant's further assertion, we concludethat defendant's request "was unequivocal and was not made simply in the alternative to seekingsubstitute counsel" (People vCoffee, 151 AD3d 1837, 1838 [4th Dept 2017], lv denied 29 NY3d 1125 [2017];see People v Paulin, 140 AD3d985, 987 [2d Dept 2016], lv denied 28 NY3d 935 [2016]; cf. People v Gillian, 8 NY3d 85,88 [2006]). Indeed, the record establishes that defendant's request "reflect[ed] a purposefuldecision to relinquish the benefit of counsel and proceed singularly" (Kathleen K., 17NY3d at 386). Defendant also asserts that his alleged poor performance while proceeding pro sedemonstrates that the court erred in granting his request to represent himself. That assertion lacksmerit. "Regardless of his lack of expertise and the rashness of his choice, defendant could chooseto waive counsel [where, as here, the record reflects that] he did so knowingly and voluntarily"(People v Vivenzio, 62 NY2d 775, 776 [1984]; see People v Malone, 119 AD3d 1352, 1355 [4th Dept 2014], lvdenied 24 NY3d 1003 [2014]). It is well settled that, "even in cases where the accused isharming himself by insisting on conducting his own defense, respect for individual autonomyrequires that he be allowed to go to jail under his own banner if he so desires and if he makes thechoice with eyes open" (McIntyre, 36 NY2d at 14 [internal quotation marks omitted];see Malone, 119 AD3d at 1355).
We reject defendant's contention in his main brief that he was denied effective assistance ofcounsel at sentencing. The record establishes that defendant's new counsel, who did notparticipate in the trial, was assigned for the limited purpose of assisting defendant in challenginghis predicate felon status, and defendant raises no challenge to the effectiveness of thatassistance. Although defendant's new counsel indicated that he was, as a result of his limitedrepresentation, unable to make an argument with respect to the appropriate sentence, defendant,who remained pro se at the sentencing proceeding, was afforded and took advantage of theopportunity to make a statement on his own behalf seeking leniency (see CPL 380.50[1]). In any event, given the nature of defendant's criminal record and the criminal conductherein, we conclude that "no statement made by [new] counsel at sentencing 'would have had animpact on the sentence imposed' " (People v Saladeen, 12 AD3d 1179, 1180 [4th Dept 2004], lvdenied 4 NY3d 767 [2005]; seePeople v Agee, 129 AD3d 1559, 1561 [4th Dept 2015]). Likewise, to the [*2]extent that defendant contends that he was denied his right tocounsel at sentencing, any violation of that right "had no adverse impact, and he is not entitled tothe remedy of a remand for resentencing . . . , which would serve no useful purpose"(People v Rohadfox, 175 AD3d1813, 1815 [4th Dept 2019], lv denied 34 NY3d 1019 [2019] [internal quotationmarks omitted]; see People vJohnson, 20 NY3d 990, 991 [2013]; People v Adams, 52 AD3d 243, 243-244 [1st Dept 2008], lvdenied 11 NY3d 829 [2008]).
Contrary to defendant's contention in his main brief, the sentence is not unduly harsh orsevere. We agree with defendant and the People correctly concede, however, that the uniformsentence and commitment form should be amended to reflect that defendant was sentenced as asecond felony drug offender (see Peoplev Ortega, 175 AD3d 1810, 1811 [4th Dept 2019]).
Finally, we have reviewed the remaining contentions raised in defendant's pro sesupplemental brief and conclude that none warrants reversal or modification of the judgment.Present—Peradotto, J.P., Carni, NeMoyer, Winslow and Bannister,JJ.