Opinion
2012-02-17
The PEOPLE of the State of New York, Respondent, v. Carl GOOSSENS, Defendant–Appellant. (Appeal No. 1.)
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered December 9, 2008. The judgment convicted defendant, upon a jury verdict, of attempted bribing a witness, conspiracy in the fifth degree and criminal solicitation in the fourth degree.John E. Tyo, Shortsville, for defendant-appellant. Carl Goossens, defendant-appellant pro se.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered December 9, 2008. The judgment convicted defendant, upon a jury verdict, of attempted bribing a witness, conspiracy in the fifth degree and criminal solicitation in the fourth degree.John E. Tyo, Shortsville, for defendant-appellant. Carl Goossens, defendant-appellant pro se. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of Counsel), for respondent.MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted bribing a witness (Penal Law §§ 110.00, 215.00 [a] ), conspiracy in the fifth degree (§ 105.05[1] ) and criminal solicitation in the fourth degree (§ 100.05[1] ). Defendant failed to preserve for our review his contention that County Court violated his right to present a defense by limiting his cross-examination of a witness ( see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333; People v. Schafer, 81 A.D.3d 1361, 1363, 916 N.Y.S.2d 414, lv. denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808; People v. Dorn, 71 A.D.3d 1523, 895 N.Y.S.2d 906). In any event, defendant's contention is without merit ( see generally People v. Corby, 6 N.Y.3d 231, 234–235, 811 N.Y.S.2d 613, 844 N.E.2d 1135; People v. Lester, 83 A.D.3d 1578, 921 N.Y.S.2d 435, lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98). Viewing the evidence in light of the elements of the crime of attempted bribing a witness 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), we conclude that the verdict with respect to that count 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).
Defendant's remaining contentions are raised in his pro se supplemental brief. Defendant contends that the court erred in denying his request to substitute assigned counsel because he demonstrated good cause for the substitution. We reject that contention. The court made the requisite “ ‘minimal inquiry’ ” into defendant's reasons for requesting new counsel ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283; see People v. Adger, 83 A.D.3d 1590, 1591–1592, 921 N.Y.S.2d 436, lv. denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803; People v. Russell, 55 A.D.3d 1314, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449), and 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]’ ” ( Adger, 83 A.D.3d at 1591, 921 N.Y.S.2d 436). We note that the court had previously granted defendant's request to substitute counsel, and that “ ‘[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’ ” ( People v. Ward, 27 A.D.3d 1119, 1120, 812 N.Y.S.2d 203, lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810, 7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1146, quoting People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defendant received meaningful representation ( see generally People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). We reject the further contention of defendant that the court abused its discretion in denying his request for a missing witness charge with respect to two witnesses. The two witnesses were unavailable and, in any event, the People established that their testimony would have been cumulative ( see generally People v. Savinon, 100 N.Y.2d 192, 196–197, 761 N.Y.S.2d 144, 791 N.E.2d 401; People v. Gonzalez, 68 N.Y.2d 424, 427–428, 509 N.Y.S.2d 796, 502 N.E.2d 583).
Defendant contends that the court erred in failing to conduct a post-trial hearing to determine whether he was denied a fair trial when jurors allegedly observed him being escorted in shackles from the courthouse on the first day of trial. That contention is unpreserved for our review “inasmuch as defendant merely noted [that the jurors had observed him in shackles] for the record and neither formally objected nor requested any relief” with respect to that issue ( People v. Johnston, 43 A.D.3d 1273, 1274, 842 N.Y.S.2d 837, lv. denied 9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881; see People v. Abron, 37 A.D.3d 1163, 829 N.Y.S.2d 385, lv. denied 8 N.Y.3d 980, 838 N.Y.S.2d 484, 869 N.E.2d 660). In any event, there is no indication in the record that the alleged “brief and ... inadvertent” observation by the jurors prejudiced defendant ( People v. Harper, 47 N.Y.2d 857, 858, 419 N.Y.S.2d 61, 392 N.E.2d 1244; see People v. Montgomery, 1 A.D.3d 984, 767 N.Y.S.2d 533, lv. denied 1 N.Y.3d 631, 777 N.Y.S.2d 29, 808 N.E.2d 1288).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.