Opinion
2016–01770 Ind. No. 802/14
06-26-2019
The PEOPLE, etc., Respondent, v. Rigoberto DEGRACIA, Appellant.
Paul Skip Laisure, New York, N.Y. (Michael Arthus of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Roni C. Piplani of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Michael Arthus of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Roni C. Piplani of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P. Griffin, J.), rendered February 3, 2016, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised its discretion in denying, without further inquiry, his request for new assigned counsel, made prior to the start of jury selection, is without merit. " ‘The 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’ " ( People v. King, 161 A.D.3d 772, 774, 77 N.Y.S.3d 70, quoting People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). A trial court's duty to consider substitution arises "only where [the] defendant makes a ‘seemingly serious request[ ]’ " ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Here, the record does not provide a basis to conclude that the defendant's motion was based on specific factual allegations of a serious complaint about his counsel (see People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ; People v. McErlean, 149 A.D.3d 872, 873, 51 N.Y.S.3d 616 ; People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was deprived of his constitutional right to due process as a result of the Supreme Court's denial of his motion to exclude, or, alternatively, to conduct a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir.) to determine the admissibility of, the results of DNA testing derived from the use of the Forensic Statistical Tool (hereinafter FST), is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the Supreme Court providently exercised its discretion in denying the defendant's motion. "A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony" ( People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; see People v. Gibson, 163 A.D.3d 586, 586, 80 N.Y.S.3d 392 ; People v. Foster–Bey, 158 A.D.3d 641, 641, 67 N.Y.S.3d 846, lv granted 32 N.Y.3d 937, 84 N.Y.S.3d 864, 109 N.E.3d 1164 ; People v. Gonzalez, 155 A.D.3d 507, 508, 65 N.Y.S.3d 142 ). Given the acceptance of FST by other New York courts at the time the motion was made (see e.g. People v. Garcia, 39 Misc.3d 482, 963 N.Y.S.2d 517 [Sup. Ct., Bronx County] ; People v. Megnath, 27 Misc.3d 405, 898 N.Y.S.2d 408 [Sup. Ct., Queens County] ), it was not an improvident exercise of discretion to deny the motion (see People v. Foster–Bey, 158 A.D.3d at 641, 67 N.Y.S.3d 846 ; People v. Gonzalez, 155 A.D.3d at 507, 65 N.Y.S.3d 142 ).
The defendant's contention that the admission of certain DNA evidence at trial violated his rights under the Sixth Amendment's Confrontation Clause (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Webb, 163 A.D.3d 880, 881, 81 N.Y.S.3d 166 ; People v. Foster–Bey, 158 A.D.3d at 641, 67 N.Y.S.3d 846 ), and we decline to review this issue in the exercise of our interest of justice jurisdiction. The defendant's contention that he was deprived of the effective assistance of counsel is without merit. A review of the record in its totality establishes that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Moreover, the defendant has failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [internal quotation marks omitted]; see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ).
RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.