Opinion
1099 KA 17–01484
12-20-2019
The PEOPLE of the State of New York, Respondent, v. John AVENT, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment that convicted him after a jury trial of murder in the second degree ( Penal Law § 125.25[1] ). Defendant's contention that the evidence is legally insufficient to establish his intent to kill the victim is unpreserved because his motion for a trial order of dismissal was not " ‘specifically directed’ at the error being urged" on appeal ( People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; see People v. Sanders, 171 A.D.3d 1460, 1461, 99 N.Y.S.3d 149 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 692, 130 N.E.3d 1302 [2019] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude " ‘that the jury failed to give the evidence the weight it should be accorded’ " ( People v. Ray, 159 A.D.3d 1429, 1430, 73 N.Y.S.3d 325 [4th Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ). Indeed, defendant "stabbed the victim in the neck with a knife, and the jury was permitted to infer the requisite intent from the facts and circumstance of the killing itself" ( People v. Marzug, 280 A.D.2d 974, 974, 721 N.Y.S.2d 220 [4th Dept. 2001], lv denied 96 N.Y.2d 904, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001] ; see People v. Massey, 61 A.D.3d 1433, 1433–1434, 877 N.Y.S.2d 589 [4th Dept. 2009], lv denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009] ; People v. Dones, 279 A.D.2d 366, 366, 720 N.Y.S.2d 101 [1st Dept. 2001], lv denied 96 N.Y.2d 799, 726 N.Y.S.2d 377, 750 N.E.2d 79 [2001] ).
We reject defendant's contention that County Court erred in denying his alleged request for substitution of counsel. Even assuming, arguendo, that defendant's complaints regarding a purported disagreement he had with defense counsel could be construed as a request for substitute counsel, we conclude that defendant "did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]" ( People v. Bennett, 94 A.D.3d 1570, 1571, 943 N.Y.S.2d 371 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] [internal quotation marks omitted] ). Moreover, defendant abandoned any purported request for substitution of counsel inasmuch as he repeatedly stated in response to questioning by the court that he was ready to proceed to trial with defense counsel, notwithstanding the court's offer to grant a 24–hour adjournment to allow defendant to discuss the situation with defense counsel (see id. ; People v. Clark, 24 A.D.3d 1225, 1226, 806 N.Y.S.2d 834 [4th Dept. 2005], lv denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ).
We also reject defendant's contention that defense counsel took an adverse position to defendant and became a witness against him by explaining his performance in response to defendant's general complaints about defense counsel. Defense counsel's explanations did not create a conflict of interest requiring the court to appoint new counsel (see People v. Nelson, 7 N.Y.3d 883, 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006] ; People v. Gutek, 151 A.D.3d 1281, 1282, 58 N.Y.S.3d 164 [3d Dept. 2017] ), and defendant otherwise failed to articulate any "specific conflict of interest or actual irreconcilable conflict with counsel that affected counsel's representation so as to warrant assigning new counsel" ( Gutek, 151 A.D.3d at 1282, 58 N.Y.S.3d 164 ).
Defendant further contends that the court erred in denying his motion for a mistrial based on a juror's alleged failure to disclose a medical condition during voir dire. We reject that contention. During the trial, one of the impaneled jurors had a seizure and was taken to a nearby hospital. The court adjourned the trial for the remainder of the day. The next morning, the court contacted the juror via telephone and, after the juror informed the court that his doctors had advised him against returning to jury duty, replaced him with an alternate juror (see CPL 270.35 ). Contrary to defendant's contention, there was no evidence that the juror was aware of his medical condition during voir dire, and therefore there was no basis for concluding that he withheld his condition from the court and parties (cf. People v. Southall, 156 A.D.3d 111, 119–121, 65 N.Y.S.3d 508 [1st Dept. 2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ; see generally People v. Rodriguez, 100 N.Y.2d 30, 34, 760 N.Y.S.2d 74, 790 N.E.2d 247 [2003] ).
We reject defendant's contention that he was denied effective assistance of counsel based on the alleged inadequacy of defendant's CPL 330.30 motion papers. "A defendant is not denied effective assistance of ... counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Joslyn, 103 A.D.3d 1254, 1256, 959 N.Y.S.2d 369 [4th Dept. 2013], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] ). Contrary to defendant's further contention, we conclude that defendant was not deprived of effective assistance of counsel at sentencing. "In general, a defense counsel's inability to persuade a sentencing court to impose a lighter sentence does not constitute ineffective assistance of counsel" ( People v. Smith, 300 A.D.2d 745, 746, 751 N.Y.S.2d 665 [3d Dept. 2002], lv denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177 [2003] ). Here, defense counsel reviewed the presentence report, reiterated defendant's position that he was innocent, asked the court to consider the allegations raised in defendant's CPL 330.30 motion in considering its sentence, and asked the court "to consider the lower end of the scale." "Because defendant continued to deny all knowledge and responsibility related to the crime, he left counsel with little choice other than to reiterate defendant's position at trial" ( People v. Carver, 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ).
Finally, we conclude that the sentence is not unduly harsh or severe.