| People v Burney |
| 2022 NY Slip Op 02737 [204 AD3d 1473] |
| April 22, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent,v Gary D.Burney, Appellant. (Appeal No. 3.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Adam Amirault of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), renderedJanuary 29, 2019. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the facts,the indictment is dismissed, and the matter is remitted to Genesee County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from three judgments convicting him, following a singlejury trial, of various crimes. Defendant appeals, in appeal No. 3, from a judgment convicting himof burglary in the second degree (Penal Law § 140.25 [2]), arising from an incidentin which defendant, despite a stay-away order of protection in favor of his on-again, off-againgirlfriend (victim), was arrested by the police after the victim allowed him to enter her apartment,where he proceeded to take a shower and a nap. In appeal No. 1, defendant appeals from ajudgment convicting him of bail jumping in the second degree (§ 215.56), arisingfrom an incident in which he failed to appear in court on the charge related to the initial arrest. Inappeal No. 2, defendant appeals from a judgment also convicting him of burglary in the seconddegree (§ 140.25 [2]), arising from a subsequent incident in which defendant,following a multi-day stay at a hotel with the victim who accompanied him out of fear and wasnot allowed to leave the hotel room, returned to the apartment. There defendant argued with thevictim, stayed overnight, and had sex with the victim against her will.
As a preliminary matter, to the extent that the pro se notice of appeal states that defendant isappealing from the sentences only, rather than the entire judgment in each appeal, we exerciseour discretion in the interest of justice to treat the appeals as validly taken from the judgments(see CPL 460.10 [6]; People vBoldt, 185 AD3d 1551, 1552 [4th Dept 2020], lv denied 35 NY3d 1093[2020]; People v Flax, 117 AD3d1582, 1583 [4th Dept 2014]).
Defendant contends in each appeal that he was deprived of effective assistance of counselbecause defense counsel, in response to defendant's pro se requests for assignment of newcounsel, took an adverse position to him by disputing certain of his factual allegations, therebycreating a conflict of interest and undermining his credibility. We reject that contention.
Although "[t]he right of an indigent criminal defendant to the services of a court-appointedlawyer does not encompass a right to appointment of successive lawyers at defendant's option. . . , the right to be represented by counsel of one's own choosing is a valued one,and a defendant may be entitled to new assigned counsel upon showing 'good cause forsubstitution,' such as a conflict of interest or other irreconcilable conflict with counsel"(People v [*2]Sides, 75 NY2d 822, 824 [1990]; see People v Porto, 16 NY3d 93,99-100 [2010]). "[A] court's duty to consider . . . a motion [for substitution ofcounsel] is invoked only where a defendant makes a 'seemingly serious request[ ]' " fornew counsel (Porto, 16 NY3d at 99-100; see Sides, 75 NY2d at 824). When adefendant's request for substitution of counsel is supported by "specific factual allegations of'serious complaints about counsel[,]' . . . the court must make at least a 'minimalinquiry' " into " 'the nature of the disagreement or its potential forresolution' " (Porto, 16 NY3d at 100; see People v Smith, 30 NY3d 1043, 1043-1044 [2017];Sides, 75 NY2d at 824-825; People v Medina, 44 NY2d 199, 207-208[1978]).
The requisite inquiry includes allowing the defendant to air his or her complaints, and thecourt may also allow defense counsel to explain his or her performance (see People v Washington, 25 NY3d1091, 1095 [2015]; People vNelson, 7 NY3d 883, 884 [2006]; People v Okolo, 35 AD3d 1272, 1273 [4th Dept 2006], lvdenied 8 NY3d 925 [2007]). Indeed, "[a]lthough an attorney is not obligated to comment ona client's pro se motions or arguments, he [or she] may address allegations of ineffectiveness[raised on a motion for substitution of counsel] 'when asked to by the court' and 'should beafforded the opportunity to explain his [or her] performance' " (Washington, 25NY3d at 1095). Nevertheless, "[w]hile defense counsel need not support a defendant's pro semotion for the assignment of new counsel, a defendant is denied the right to [effective,conflict-free] counsel when defense counsel becomes a witness against the defendant by taking aposition adverse to the defendant in the context of such a motion" (People v Fudge, 104 AD3d 1169,1170 [4th Dept 2013], lv denied 21 NY3d 1042 [2013]; see Okolo, 35 AD3d at1273). Defense counsel "takes a position adverse to his [or her] client when stating that thedefendant's motion lacks merit" (Washington, 25 NY3d at 1095). Conversely, defensecounsel "does not create an actual conflict merely by 'outlining his [or her] efforts on[the] client's behalf' . . . and 'defending his [or her] performance' "(id.; see Nelson, 7 NY3d at 884; People v Avent, 178 AD3d 1403, 1405 [4th Dept 2019], lvdenied 35 NY3d 940 [2020]; Peoplev Blackwell, 129 AD3d 1690, 1691 [4th Dept 2015], lv denied 26 NY3d 926[2015]; Okolo, 35 AD3d at 1273).
Here, we conclude that defense counsel's denials of defendant's open-court allegations thatdefense counsel used a racial slur or other language evincing racial animus in conversations withdefendant did not, without more, establish that defense counsel took a position adverse todefendant on his requests for substitution of counsel or otherwise created a conflict of interest(see Washington, 25 NY3d at 1093-1095; People v Gutek, 151 AD3d 1281, 1282 [3d Dept 2017]; see generally People v Cambronae, 180AD3d 557, 558 [1st Dept 2020], lv denied 35 NY3d 1025 [2020]). Defense counselbriefly "denied the factual assertions but, importantly, did not take a position adverse todefendant on his request[s] for substitute counsel or otherwise, and no conflict of interest arosetherefrom" (Gutek, 151 AD3d at 1282; see Washington, 25 NY3d at 1093-1095).Contrary to defendant's related contention, while it would have been better practice for defensecounsel to be more circumspect in his representations to County Court even in the face ofdefendant's continued interruptive and accusatory behavior, we conclude that defense counsel didnot take a position adverse to defendant by clarifying that he did not, in fact, inform defendantthat the decision to call witnesses was up to defendant (see Washington, 25 NY3d at1093-1095; Cambronae, 180 AD3d at 558). Defense counsel simply informed the court"what [he and defendant had] discussed" about the decision to call witnesses and, in doing so,defense counsel "never strayed beyond a factual explanation of his efforts on his client's behalf"(Washington, 25 NY3d at 1095; see Cambronae, 180 AD3d at 558).
We reject defendant's contention in each appeal that the court erred in denying his purportedpretrial requests to represent himself without conducting a searching inquiry. The recordestablishes that defendant "did not clearly and unequivocally request to proceed pro se," i.e.,defendant's statements " 'd[id] not reflect a definitive commitment to self-representation'that would trigger a searching inquiry by the trial court" (People v Duarte, 37 NY3d 1218, 1218-1219 [2022], quoting People v LaValle, 3 NY3d 88, 106[2004]; see People v Gillian, 8NY3d 85, 88 [2006]).
Defendant also contends in each appeal that the court erred by refusing to grant anadjournment just before the beginning of jury selection to permit him to retain new counsel. Thatcontention lacks merit. It is well settled that "the constitutional right to [a defense] by counsel ofone's own choosing does not bestow upon a criminal defendant the absolute right to demand thathis trial be delayed while he selects another attorney to represent him at trial. . . .Whether a [*3]continuance should be granted is largely within thediscretion of the [t]rial [court]" (People v Arroyave, 49 NY2d 264, 271 [1980]; see People v Goodwin, 159 AD3d1433, 1433-1434 [4th Dept 2018]; People v Robinson, 132 AD3d 1407, 1409 [4th Dept 2015], lvdenied 27 NY3d 1005 [2016]). Here, defendant "had ample opportunity to retain counsel ofhis own choosing before his request, and he failed to demonstrate that the requested adjournmentwas necessitated by forces beyond his control and was not a dilatory tactic" (People v Allison, 69 AD3d 740,741 [2d Dept 2010], lv denied 14 NY3d 885 [2010]; see People v Hunter, 171 AD3d 1534, 1535 [4th Dept 2019], lvdenied 33 NY3d 1105 [2019]). Considering "the reasonableness of the trial court's decisionin light of all the existing circumstances" (Arroyave, 49 NY2d at 272), we conclude thatthe court did not abuse its discretion in refusing to grant an adjournment on the eve of trial (see People v DeValle, 194 AD3d1411, 1412 [4th Dept 2021], lv denied 37 NY3d 964 [2021]; Robinson, 132AD3d at 1409).
Contrary to defendant's further contention in appeal Nos. 2 and 3, the court did not err inpermitting the People to introduce Molineux evidence related to prior incidents ofdomestic violence between defendant and the victim. The court properly concluded that theevidence "provided necessary background information on the nature of the relationship andplaced the charged conduct in context" (People v Dorm, 12 NY3d 16, 19 [2009]; see People v Swift, 195 AD3d1496, 1499 [4th Dept 2021], lv denied 37 NY3d 1030 [2021]; see generally People v Frankline, 27NY3d 1113, 1115 [2016]), and was relevant to the issue of defendant's intent (seeDorm, 12 NY3d at 19; People vWomack, 143 AD3d 1171, 1173 [3d Dept 2016], lv denied 28 NY3d 1151[2017]). We further conclude that the court did not abuse its discretion in determining that theprobative value of the evidence outweighed its potential for prejudice (see Dorm, 12NY3d at 19; see generally People v Alvino, 71 NY2d 233, 242 [1987]), and that thecourt's repeated limiting instructions minimized any prejudice to defendant (see People v Murray, 185 AD3d1507, 1508 [4th Dept 2020], lv denied 36 NY3d 974 [2020]; People v Matthews, 142 AD3d1354, 1356 [4th Dept 2016], lv denied 28 NY3d 1125 [2016]).
Defendant next contends in appeal Nos. 2 and 3 that the burglary conviction in each of thoseappeals is not supported by legally sufficient evidence because, beyond his violations of thestay-away provision of the order of protection, the evidence did not establish that he intended toviolate any other provision of the order of protection or commit any other crime in the apartment.We reject that contention. "A verdict is legally sufficient when, viewing the facts in a light mostfavorable to the People, there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,349 [2007] [internal quotation marks omitted]; see People v Kancharla, 23 NY3d 294, 302 [2014]). In conductinga legal sufficiency review, "[w]e must assume that the jury credited the People's witnesses andgave the prosecution's evidence the full weight it might reasonably be accorded" (People v Hampton, 21 NY3d 277,288 [2013]; see People v Gordon,23 NY3d 643, 649 [2014]). Here, viewing the evidence in that manner, we conclude that theevidence is legally sufficient to support each burglary conviction (see People v Lewis, 5 NY3d 546,551-553 [2005]; People v Lopez,147 AD3d 456, 456-457 [1st Dept 2017], lv denied 29 NY3d 999 [2017]).
Defendant also contends in appeal Nos. 2 and 3 that the verdict is against the weight of theevidence with respect to the intent element of the burglary charges. We agree with defendant inpart. "A legally sufficient verdict . . . may be against the weight of the evidence"(Kancharla, 23 NY3d at 302; see Danielson, 9 NY3d at 349). Indeed, under aweight of the evidence review, "[e]ven if all the elements and necessary findings are supportedby some credible evidence, [we] must examine the evidence further" (People v Bleakley,69 NY2d 490, 495 [1987]; see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]). "Unlike a sufficiency analysis, weight of the evidence reviewrequires [that we] act, in effect, as a second jury . . . by rendering [our] owndetermination of the facts as proved at trial 'in light of the elements of the crime as charged to theother jurors' " (Kancharla, 23 NY3d at 302-303, quoting Danielson, 9NY3d at 349; see People v Romero,7 NY3d 633, 644 n 2 [2006]; Bleakley, 69 NY2d at 495). We nonetheless mustaccord "[g]reat deference . . . to the fact-finder's opportunity to view the witnesses,hear the testimony and observe demeanor" (Bleakley, 69 NY2d at 495; seeKancharla, 23 NY3d at 303).
Here, viewing the evidence in light of the elements of the crime in appeal No. 2 as charged tothe jury, even assuming, arguendo, that an acquittal on that crime would not have [*4]been unreasonable, we cannot conclude that the jury failed to givethe evidence the weight it should be accorded (see People v Williams, 169 AD3d 567, 567 [1st Dept 2019], lvdenied 33 NY3d 1075 [2019]; see generally Danielson, 9 NY3d at 348-349;Bleakley, 69 NY2d at 495). In appeal No. 3, however, we conclude that an acquittalwould not have been unreasonable and, upon "weigh[ing] conflicting testimony, review[ing] anyrational inferences that may be drawn from the evidence and evaluat[ing] the strength of suchconclusions" (Danielson, 9 NY3d at 348), we are "not convinced that the jury wasjustified in finding that guilt was proven beyond a reasonable doubt" with respect to defendant'sintent to violate the order of protection beyond the stay-away provision or commit a separatecrime in the apartment (People vDelamota, 18 NY3d 107, 117 [2011]; see generally People v Cajigas, 19 NY3d 697, 701-702 [2012]). Wetherefore reverse the judgment in appeal No. 3 and dismiss that indictment.
Contrary to defendant's further contention, the sentence imposed on the remaining counts isnot unduly harsh or severe. Finally, defendant's remaining contention with respect to appeal No.2 does not warrant reversal or modification of the judgment in that appeal and, in light of ourdetermination in appeal No. 3, defendant's remaining contention insofar as it relates to thatappeal is academic. Present—Centra, J.P., Peradotto, Lindley, Curran and Winslow,JJ.