Opinion
944 KA 17-00505
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Tshombe A. HARRIS, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of refusal to submit to a breath test and dismissing count 16 of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while intoxicated (DWI) as a class D felony ( Vehicle and Traffic Law §§ 1192 [3] ; 1193 [1] [c] [ii]), unlawful fleeing a police officer in a motor vehicle in the third degree ( Penal Law § 270.25 ), operating a motor vehicle not equipped with a court ordered ignition interlock device ( Vehicle and Traffic Law § 1198 [9] [d] ), reckless driving (§ 1212), and refusal to submit to a breath test (§ 1194 [1] [b]).
As a preliminary matter, inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 16 of the indictment and dismissing that count (see People v. Adams , 201 A.D.3d 1311, 1312, 161 N.Y.S.3d 613 [4th Dept. 2022] ; People v. Bembry , 199 A.D.3d 1340, 1342, 157 N.Y.S.3d 201 [4th Dept. 2021] ; see also People v. Martinez , 81 N.Y.2d 810, 811-812, 595 N.Y.S.2d 376, 611 N.E.2d 277 [1993] ).
Defendant's contention that the evidence is not legally sufficient to support the conviction is preserved for our review only to the extent that he challenges the counts of DWI as a class D felony, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see People v. Watkins , 180 A.D.3d 1222, 1230, 120 N.Y.S.3d 500 [3d Dept. 2020], lv denied 35 N.Y.3d 1030, 126 N.Y.S.3d 25, 149 N.E.3d 863 [2020] ; People v. Goldblatt , 98 A.D.3d 817, 819, 950 N.Y.S.2d 210 [3d Dept. 2012], lv denied 20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289 [2012] ; People v. McGraw , 57 A.D.3d 1516, 1517, 869 N.Y.S.2d 893 [4th Dept. 2008] ).
We also reject defendant's contention that the verdict is against the weight of the evidence. Based on our dismissal of count 16, we do not address defendant's contention with respect to that count. Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that, viewing the evidence in light of the elements of the remaining crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v. Friello , 147 A.D.3d 1519, 1520, 47 N.Y.S.3d 620 [4th Dept. 2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; People v. Shank , 26 A.D.3d 812, 813-814, 808 N.Y.S.2d 533 [4th Dept. 2006] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant further contends that County Court erred in allowing the People to introduce evidence of his prior bad acts that occurred during a previous arrest for DWI. Even assuming, arguendo, that the court erred in admitting that evidence (see generally People v. Leonard , 29 N.Y.3d 1, 6-8, 51 N.Y.S.3d 4, 73 N.E.3d 344 [2017] ; People v. Hudy , 73 N.Y.2d 40, 54-56, 538 N.Y.S.2d 197, 535 N.E.2d 250 [1988], abrogated on other grounds by Carmell v. Texas , 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 [2000] ), we conclude that any error is harmless (see generally People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). The evidence of defendant's guilt is overwhelming (see People v. Dean , 145 A.D.3d 1633, 1633, 44 N.Y.S.3d 663 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; People v. Donaldson , 46 A.D.3d 1109, 1110, 848 N.Y.S.2d 719 [3d Dept. 2007] ; People v. Erickson , 156 A.D.2d 760, 762-763, 549 N.Y.S.2d 182 [3d Dept. 1989], lv denied 75 N.Y.2d 966, 556 N.Y.S.2d 251, 555 N.E.2d 623 [1990] ), and "there is no significant probability that the jury would have acquitted defendant if the allegedly improper Molineux evidence had been excluded" ( People v. Casado , 99 A.D.3d 1208, 1212, 951 N.Y.S.2d 797 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ; see generally People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016] ).
Finally, defendant contends that the court erred by failing to conduct a minimal inquiry into his complaints about defense counsel. That contention lacks merit. Defendant "failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; see People v. Morris , 183 A.D.3d 1254, 1255, 123 N.Y.S.3d 784 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 838, 151 N.E.3d 519 [2020] ). Rather, defendant made only " ‘vague assertions that defense counsel was not in frequent contact with him and did not aid in his defense’ " ( People v. Jones , 149 A.D.3d 1576, 1577, 52 N.Y.S.3d 804 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017]) and "conclusory assertions that he and defense counsel disagreed about ... strategy" ( People v. Brady , 192 A.D.3d 1557, 1558, 140 N.Y.S.3d 846 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 522, 170 N.E.3d 396 [2021] ). In any event, we conclude that the court "conducted the requisite ‘minimal inquiry’ to determine whether substitution of counsel was warranted" ( People v. Chess , 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018], lv denied 32 NY3d 936 [2018], quoting People v. Sides , 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). The record establishes that the court "allowed defendant to air his concerns about defense counsel, and ... reasonably concluded that defendant's vague and generic objections had no merit or substance" ( People v. Linares , 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ), and "properly concluded that defense counsel was ‘reasonably likely to afford ... defendant effective assistance’ of counsel" ( People v. Bradford , 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014], quoting People v. Medina , 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ; see Chess , 162 A.D.3d at 1579, 79 N.Y.S.3d 433 ).