Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Bobby JOHNSON, Jr., Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of burglary in the second degree (Penal Law § 140.25[1][a], [c], [d] ), and nine counts of robbery in the first degree (§ 160.15[2], [3], [4] ). Contrary to defendant's contention, County Court properly exercised its discretion in denying his motion for new assigned counsel on the morning of the commencement of trial inasmuch as defendant failed to establish good cause for a substitution of counsel ( see People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609). The court conducted the requisite inquiry when defendant made his oral request for substitution of counsel and concluded that defendant's objections were without merit ( see People v. Stilts, 86 A.D.3d 927, 928, 927 N.Y.S.2d 616,lv. denied18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133;see generally People v. Sides, 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Good cause does not exist where, as here, “on the eve of trial, disagreements over trial strategy generate discord” ( Linares, 2 N.Y.3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609).
We reject defendant's further contention that he received ineffective assistance of counsel. Defendant failed to demonstrate that defense counsel's decision not to pursue the affirmative defense of mental disease or defect pursuant to Penal Law § 40.15 was not the result of a “ ‘well-advised defense strategy’ ” ( People v. Skinner, 224 A.D.2d 916, 916, 637 N.Y.S.2d 872, quoting People v. Ford, 46 N.Y.2d 1021, 1023, 416 N.Y.S.2d 536, 389 N.E.2d 1058;see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant's contention that the court erred in bifurcating the jury instructions over two days is not preserved for our review because he failed to make a timely objection thereto ( see People v. Miller, 59 A.D.3d 463, 464, 873 N.Y.S.2d 154,lv. denied12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591;People v. Graham, 228 A.D.2d 299, 299, 644 N.Y.S.2d 203,lv. denied88 N.Y.2d 985, 649 N.Y.S.2d 392, 672 N.E.2d 618;People v. Williams, 206 A.D.2d 917, 917, 614 N.Y.S.2d 842,lv. denied84 N.Y.2d 911, 621 N.Y.S.2d 529, 645 N.E.2d 1229). We reject defendant's contention that the bifurcation of the jury instructions is a mode of proceedings error that does not require preservation. Defendant's reliance on People v. Fujah, 182 A.D.2d 774, 775, 582 N.Y.S.2d 497 is misplaced because in that case there was a violation of CPL 260.30 when the jury instructions were provided before the parties' summations, whereas here there was no such violation. We decline to exercise our power to review defendant's contention concerning the bifurcated jury instructions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.