Opinion
1171 KA 19-00552
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Gary D. BURNEY, Defendant-Appellant. (Appeal No. 3.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from three judgments convicting him, following a single jury trial, of various crimes. Defendant appeals, in appeal No. 3, from a judgment convicting him of burglary in the second degree ( Penal Law § 140.25 [2] ), arising from an incident in which defendant, despite a stay-away order of protection in favor of his on-again, off-again girlfriend (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 a judgment convicting him of bail jumping in the second degree (§ 215.56), arising from an incident in which he failed to appear in court on the charge related to the initial arrest. In appeal No. 2, defendant appeals from a judgment also convicting him of burglary in the second degree ( § 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 was not allowed to leave the hotel room, returned to the apartment. There defendant argued with the victim, 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 is appealing from the sentences only, rather than the entire judgment in each appeal, we exercise our discretion in the interest of justice to treat the appeals as validly taken from the judgments (see CPL 460.10 [6] ; People v. Boldt , 185 A.D.3d 1551, 1552, 128 N.Y.S.3d 401 [4th Dept. 2020], lv denied 35 N.Y.3d 1093, 131 N.Y.S.3d 295, 155 N.E.3d 788 [2020] ; People v. Flax , 117 A.D.3d 1582, 1583, 985 N.Y.S.2d 396 [4th Dept. 2014] ). Defendant contends in each appeal that he was deprived of effective assistance of counsel because defense counsel, in response to defendant's pro se requests for assignment of new counsel, took an adverse position to him by disputing certain of his factual allegations, thereby creating 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-appointed lawyer 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 for substitution,’ such as a conflict of interest or other irreconcilable conflict with counsel" ( People v. Sides , 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ; see People v. Porto , 16 N.Y.3d 93, 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). "[A] court's duty to consider ... a motion [for substitution of counsel] is invoked only where a defendant makes a ‘seemingly serious request[ ]’ " for new counsel ( Porto , 16 N.Y.3d at 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see Sides , 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). When a defendant's request for substitution of counsel is supported by "specific factual allegations of ‘serious complaints about counsel[,]’ ... the court must make at least a ‘minimal inquiry’ " into " ‘the nature of the disagreement or its potential for resolution’ " ( Porto , 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Smith , 30 N.Y.3d 1043, 1043-1044, 67 N.Y.S.3d 575, 89 N.E.3d 1255 [2017] ; Sides , 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; People v. Medina , 44 N.Y.2d 199, 207-208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ).
The requisite inquiry includes allowing the defendant to air his or her complaints, and the court may also allow defense counsel to explain his or her performance (see People v. Washington , 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015] ; People v. Nelson , 7 N.Y.3d 883, 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006] ; People v. Okolo , 35 A.D.3d 1272, 1273, 825 N.Y.S.2d 391 [4th Dept. 2006], lv denied 8 N.Y.3d 925, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ). Indeed, "[a]lthough an attorney is not obligated to comment on a 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 be afforded the opportunity to explain his [or her] performance’ " ( Washington , 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ). Nevertheless, "[w]hile defense counsel need not support a defendant's pro se motion 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 a position adverse to the defendant in the context of such a motion" ( People v. Fudge , 104 A.D.3d 1169, 1170, 960 N.Y.S.2d 792 [4th Dept. 2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ; see Okolo , 35 A.D.3d at 1273, 825 N.Y.S.2d 391 ). Defense counsel "takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit" ( Washington , 25 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ). Conversely, defense counsel "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 N.Y.3d at 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 ; People v. Avent , 178 A.D.3d 1403, 1405, 116 N.Y.S.3d 449 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 273, 147 N.E.3d 543 [2020] ; People v. Blackwell , 129 A.D.3d 1690, 1691, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ; Okolo , 35 A.D.3d at 1273, 825 N.Y.S.2d 391 ).
Here, we conclude that defense counsel's denials of defendant's open-court allegations that defense counsel used a racial slur or other language evincing racial animus in conversations with defendant did not, without more, establish that defense counsel took a position adverse to defendant on his requests for substitution of counsel or otherwise created a conflict of interest (see Washington , 25 N.Y.3d at 1093-1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; People v. Gutek , 151 A.D.3d 1281, 1282, 58 N.Y.S.3d 164 [3d Dept. 2017] ; see generally People v. Cambronae , 180 A.D.3d 557, 558, 120 N.Y.S.3d 291 [1st Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 28, 149 N.E.3d 866 [2020] ). Defense counsel briefly "denied the factual assertions but, importantly, did not take a position adverse to defendant on his request[s] for substitute counsel or otherwise, and no conflict of interest arose therefrom" ( Gutek , 151 A.D.3d at 1282, 58 N.Y.S.3d 164 ; see Washington , 25 N.Y.3d at 1093-1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ). Contrary to defendant's related contention, while it would have been better practice for defense counsel to be more circumspect in his representations to County Court even in the face of defendant's continued interruptive and accusatory behavior, we conclude that defense counsel did not take a position adverse to defendant by clarifying that he did not, in fact, inform defendant that the decision to call witnesses was up to defendant (see Washington , 25 N.Y.3d at 1093-1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; Cambronae , 180 A.D.3d at 558, 120 N.Y.S.3d 291 ). 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 N.Y.3d at 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; see Cambronae , 180 A.D.3d at 558, 120 N.Y.S.3d 291 ).
We reject defendant's contention in each appeal that the court erred in denying his purported pretrial requests to represent himself without conducting a searching inquiry. The record establishes 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 N.Y.3d 1218, 1219, 163 N.Y.S.3d 487, 183 N.E.3d 1205 [2022], quoting People v. LaValle , 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ; see People v. Gillian , 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 [2006] ).
Defendant also contends in each appeal that the court erred by refusing to grant an adjournment just before the beginning of jury selection to permit him to retain new counsel. That contention lacks merit. It is well settled that "the constitutional right to [a defense] by counsel of one's own choosing does not bestow upon a criminal defendant the absolute right to demand that his trial be delayed while he selects another attorney to represent him at trial.... Whether a continuance should be granted is largely within the discretion of the [t]rial [court]" ( People v. Arroyave , 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980] ; see People v. Goodwin , 159 A.D.3d 1433, 1433-1434, 73 N.Y.S.3d 327 [4th Dept. 2018] ; People v. Robinson , 132 A.D.3d 1407, 1409, 17 N.Y.S.3d 559 [4th Dept. 2015], lv denied 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 [2016]). Here, defendant "had ample opportunity to retain counsel of his own choosing before his request, and he failed to demonstrate that the requested adjournment was necessitated by forces beyond his control and was not a dilatory tactic" ( People v. Allison , 69 A.D.3d 740, 741, 892 N.Y.S.2d 516 [2d Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010] ; see People v. Hunter , 171 A.D.3d 1534, 1535, 99 N.Y.S.3d 551 [4th Dept. 2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 662, 130 N.E.3d 1272 [2019] ). Considering "the reasonableness of the trial court's decision in light of all the existing circumstances" ( Arroyave , 49 N.Y.2d at 272, 425 N.Y.S.2d 282, 401 N.E.2d 393 ), we conclude that the court did not abuse its discretion in refusing to grant an adjournment on the eve of trial (see People v. DeValle , 194 A.D.3d 1411, 1412, 143 N.Y.S.3d 632 [4th Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 753, 171 N.E.3d 229 [2021] ; Robinson , 132 A.D.3d at 1409, 17 N.Y.S.3d 559 ).
Contrary to defendant's further contention in appeal Nos. 2 and 3, the court did not err in permitting the People to introduce Molineux evidence related to prior incidents of domestic violence between defendant and the victim. The court properly concluded that the evidence "provided necessary background information on the nature of the relationship and placed the charged conduct in context" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ; see People v. Swift , 195 A.D.3d 1496, 1499, 147 N.Y.S.3d 852 [4th Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 410, 175 N.E.3d 436 [2021] ; see generally People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016] ), and was relevant to the issue of defendant's intent (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Womack , 143 A.D.3d 1171, 1173, 41 N.Y.S.3d 302 [3d Dept. 2016], lv denied 28 N.Y.3d 1151, 52 N.Y.S.3d 303, 74 N.E.3d 688 [2017] ). We further conclude that the court did not abuse its discretion in determining that the probative value of the evidence outweighed its potential for prejudice (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; see generally People v. Alvino , 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ), and that the court's repeated limiting instructions minimized any prejudice to defendant (see People v. Murray , 185 A.D.3d 1507, 1508, 128 N.Y.S.3d 736 [4th Dept. 2020], lv denied 36 N.Y.3d 974, 138 N.Y.S.3d 454, 162 N.E.3d 683 [2020] ; People v. Matthews , 142 A.D.3d 1354, 1356, 38 N.Y.S.3d 307 [4th Dept. 2016], lv denied 28 N.Y.3d 1125, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016]).
Defendant next contends in appeal Nos. 2 and 3 that the burglary conviction in each of those appeals is not supported by legally sufficient evidence because, beyond his violations of the stay-away provision of the order of protection, the evidence did not establish that he intended to violate 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 most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted]; see People v. Kancharla , 23 N.Y.3d 294, 302, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ). In conducting a legal sufficiency review, "[w]e must assume that the jury credited the People's witnesses and gave the prosecution's evidence the full weight it might reasonably be accorded" ( People v. Hampton , 21 N.Y.3d 277, 288, 970 N.Y.S.2d 716, 992 N.E.2d 1059 [2013] ; see People v. Gordon , 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ). Here, viewing the evidence in that manner, we conclude that the evidence is legally sufficient to support each burglary conviction (see People v. Lewis , 5 N.Y.3d 546, 551-553, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; People v. Lopez , 147 A.D.3d 456, 456-457, 46 N.Y.S.3d 591 [1st Dept. 2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ).
Defendant also contends in appeal Nos. 2 and 3 that the verdict is against the weight of the evidence with respect to the intent element of the burglary charges. We agree with defendant in part. "A legally sufficient verdict ... may be against the weight of the evidence" ( Kancharla , 23 N.Y.3d at 302, 991 N.Y.S.2d 1, 14 N.E.3d 354 ; see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Indeed, under a weight of the evidence review, "[e]ven if all the elements and necessary findings are supported by some credible evidence, [we] must examine the evidence further" ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ). "Unlike a sufficiency analysis, weight of the evidence review requires [that we] act, in effect, as a second jury ... by rendering [our] own determination of the facts as proved at trial ‘in light of the elements of the crime as charged to the other jurors’ " ( Kancharla , 23 N.Y.3d at 302-303, 991 N.Y.S.2d 1, 14 N.E.3d 354, quoting Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see People v. Romero , 7 N.Y.3d 633, 644 n. 2, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We nonetheless must accord "[g]reat deference ... to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see Kancharla , 23 N.Y.3d at 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 ).
Here, viewing the evidence in light of the elements of the crime in appeal No. 2 as charged to the jury, even assuming, arguendo, that an acquittal on that crime would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see People v. Williams , 169 A.D.3d 567, 567, 94 N.Y.S.3d 272 [1st Dept. 2019], lv denied 33 N.Y.3d 1075, 105 N.Y.S.3d 51, 129 N.E.3d 371 [2019] ; see generally Danielson , 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). In appeal No. 3, however, we conclude that an acquittal would not have been unreasonable and, upon "weigh[ing] conflicting testimony, review[ing] any rational inferences that may be drawn from the evidence and evaluat[ing] the strength of such conclusions" ( Danielson , 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are "not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt" with respect to defendant's intent to violate the order of protection beyond the stay-away provision or commit a separate crime in the apartment ( People v. Delamota , 18 N.Y.3d 107, 117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; see generally People v. Cajigas , 19 N.Y.3d 697, 701-702, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012] ). We therefore reverse the judgment in appeal No. 3 and dismiss that indictment.
Contrary to defendant's further contention, the sentence imposed on the remaining counts is not 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 our determination in appeal No. 3, defendant's remaining contention insofar as it relates to that appeal is academic.