| People v Brady |
| 2021 NY Slip Op 01647 [192 AD3d 1557] |
| March 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bashan H. Brady, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Bashan H. Brady, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedDecember 8, 2016. The judgment convicted defendant upon a jury verdict of robbery in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of twocounts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]), defendantcontends in his main brief that the conviction is not supported by legally sufficient evidence thathe was present at and involved in the robbery and that the victim sustained a physical injury. Wereject that contention. The People presented evidence that the victim knew defendant fromprevious interactions with him and that, while the victim was seated in his car, he wasapproached by defendant and another individual, who began punching the victim from either sideof the driver's seat and then took his property (see generally People v Ettleman, 109 AD3d 1126, 1127-1128 [4thDept 2013], lv denied 22 NY3d 1198 [2014]). Further, the victim's testimony that hesuffered injuries to his finger, requiring 8 to 10 stitches, as well as injuries to his head and neck,which he testified were "quite painful," is legally sufficient to establish that his pain wassubstantial, i.e., "more than slight or trivial," and thus that he sustained a physical injury at thehand of defendant (People v Kraatz,147 AD3d 1556, 1557 [4th Dept 2017] [internal quotation marks omitted]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we also reject defendant's contention that the verdict is against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention, raised in his main brief, that County Court erred in refusingto substitute counsel in place of his assigned attorney. A court's duty to consider a motion tosubstitute counsel is invoked only when a defendant makes a "seemingly serious request[ ]" fornew counsel (People v Porto, 16NY3d 93, 100 [2010] [internal quotation marks omitted]; see People v Sides, 75NY2d 822, 825 [1990]). When a defendant makes "specific factual allegations of seriouscomplaints about counsel," the court must make at least a "minimal inquiry" into "the nature ofthe disagreement or its potential for resolution" (Porto, 16 NY3d at 100 [internalquotation marks omitted]; see People vGibson, 126 AD3d 1300, 1301-1302 [4th Dept 2015]). Upon conducting that inquiry,the court may substitute counsel only where good cause is shown (see Porto, 16 NY3d at100; Sides, 75 NY2d at 825; Gibson, 126 AD3d at 1302). Here, defendant'srequest for substitution was based on conclusory assertions that he and defense counsel disagreedabout trial strategy and that defense counsel had not spoken to him often enough about the case.Those assertions were insufficient to require an inquiry by the court (see People v Barnes, 156 AD3d1417, 1418 [4th Dept 2017], lv denied 31 NY3d 1078 [2018]; [*2]Peoplev Lewicki, 118 AD3d 1328, 1329 [4th Dept 2014], lv denied 23 NY3d 1064[2014]; People v Benson, 265 AD2d 814, 814-815 [4th Dept 1999], lv denied 94NY2d 860 [1999], cert denied 529 US 1076 [2000]). Nevertheless, the court conductedan inquiry in which it permitted defendant to "articulate his complaints about defense counsel"(People v Jones, 173 AD3d1628, 1630 [4th Dept 2019]), following which the court properly denied defendant's requestinasmuch as good cause does not exist where, as here, "on the eve of trial, disagreements overtrial strategy generate discord" (People vLinares, 2 NY3d 507, 511 [2004]; see Porto, 16 NY3d at 101-102; People vMedina, 44 NY2d 199, 208 [1978]) or where defendant makes only generic complaintsconcerning a lack of communication with defense counsel (see People v Larkins, 128 AD3d 1436, 1441 [4th Dept 2015], lvdenied 27 NY3d 1001 [2016]).
Contrary to defendant's contention in his main brief, the sentence is not unduly harsh orsevere (see People v Bonner, 79AD3d 1790, 1791 [4th Dept 2010], lv denied 17 NY3d 792 [2011]).
Defendant contends in his pro se supplemental brief that he was deprived of his right totestify before the grand jury because he was assigned an attorney after he was indicted. Defendantdid not provide a factual record sufficient to enable us to review his contention (see People vKinchen, 60 NY2d 772, 773-774 [1983]; People v Dixon, 37 AD3d 1124, 1124 [4th Dept 2007], lvdenied 10 NY3d 764 [2008]; Peoplev Harden, 6 AD3d 181, 182 [1st Dept 2004], lv denied 3 NY3d 641 [2004]).Even assuming, arguendo, that defendant was without counsel when the matter was presented tothe grand jury, we would nevertheless conclude that reversal is not required inasmuch asdefendant did not seek dismissal of the indictment on the ground that he was deprived of hisstatutory right to testify before the grand jury (see Dixon, 37 AD3d at 1124; cf. Peoplev Backman, 274 AD2d 432, 433 [2d Dept 2000]; see generally People v Johnston,178 AD2d 550, 550-551 [2d Dept 1991]).
We have considered defendant's remaining contention in his pro se supplemental brief andconclude that it does not warrant modification or reversal of the judgment.Present—Smith, J.P., Carni, Troutman, Bannister and DeJoseph, JJ.