Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Shawn J. COFFEE, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Shawn J. Coffee, Defendant–Appellant pro se. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
Shawn J. Coffee, Defendant–Appellant pro se.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ) and criminal possession of a weapon in the second degree ( § 265.03[3] ). Contrary to defendant's contention, County Court did not abuse its discretion in denying his request for substitution of counsel (see People v. Correa, 145 A.D.3d 1640, 1640, 44 N.Y.S.3d 834 ). Defendant failed to show good cause for substitution inasmuch as his claims that defense counsel was ineffective were without merit (see People v. Linares, 2 N.Y.3d 507, 510–511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; People v. Johnson, 114 A.D.3d 1132, 1133, 979 N.Y.S.2d 735, lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 ). We reject defendant's further contention that he was improperly permitted to proceed pro se. The record establishes that defendant made a "knowing, voluntary and intelligent waiver of the right to counsel" ( People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ). Defendant's request was unequivocal and was not made simply in the alternative to seeking substitute counsel (see People v. Paulin, 140 A.D.3d 985, 987, 33 N.Y.S.3d 459, lv. denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 ; cf. People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 ). The court did not abuse its discretion in declining defendant's request for standby counsel (see People v. Brown, 6 A.D.3d 1125, 1126, 776 N.Y.S.2d 408, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 ). "A criminal defendant has no Federal or State constitutional right to hybrid representation ... While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both ... Thus, a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial" ( People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 ). Contrary to defendant's contention, he was afforded effective assistance of counsel during the period of defense counsel's representation (see Brown, 6 A.D.3d at 1126, 776 N.Y.S.2d 408 ).
Defendant's contention that the court gave an improper instruction to the jury with respect to drawing an inference from defendant's exercise of his right to represent himself is not preserved for our review (see People v. Quinones, 235 A.D.2d 437, 437, 653 N.Y.S.2d 122, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063 ). In any event, defendant's contention lacks merit. The variation from the pattern jury charge "was too inconsequential to warrant reversal or to have detracted from the neutral tone of the charge" ( People v. Webb, 215 A.D.2d 704, 705, 628 N.Y.S.2d 302, lv. denied 86 N.Y.2d 804, 632 N.Y.S.2d 518, 656 N.E.2d 617 ; see Quinones, 235 A.D.2d at 437, 653 N.Y.S.2d 122 ). Defendant also failed to preserve for our review his contention that the court violated CPL 300.10(4) (see People v. Armstrong, 134 A.D.3d 1401, 1402, 21 N.Y.S.3d 655, lv. denied 27 N.Y.3d 962, 36 N.Y.S.3d 624, 56 N.E.3d 904 ), and it is without merit in any event inasmuch as, prior to defendant's summation, the court informed defendant of the charges that would be submitted to the jury.
Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct (see People v. Peterkin, 12 A.D.3d 1026, 1028, 785 N.Y.S.2d 620, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). The sentence is not unduly harsh or severe. We have examined defendant's remaining contentions in his main and pro se supplemental briefs and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.