Opinion
123 KA 18-01852
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Jovon MCGLOUN, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Although the notice of appeal incorrectly states that defendant is appealing from a "plea and sentencing," we exercise our discretion to treat the appeal as taken from the judgment founded upon the jury verdict (see CPL 460.10 [6] ; People v. Boldt , 185 A.D.3d 1551, 1552, 128 N.Y.S.3d 401 [4th Dept. 2020], lv denied 35 N.Y.3d 1093, 131 N.Y.S.3d 295, 155 N.E.3d 788 [2020] ). We now affirm.
Defendant abandoned his pretrial request for a new attorney by thereafter "repeatedly stat[ing] ... that he was ready to proceed to trial with [existing] counsel" ( People v. Avent , 178 A.D.3d 1403, 1404, 116 N.Y.S.3d 449 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 273, 147 N.E.3d 543 [2020] ; see People v. Scott , 172 A.D.3d 543, 544, 100 N.Y.S.3d 260 [1st Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 629, 134 N.E.3d 628 [2019] ). Defendant's present contention that County Court erred in denying his pretrial request for a new attorney is therefore waived (see People v. Jones , 79 A.D.3d 1665, 1665, 917 N.Y.S.2d 774 [4th Dept. 2010] ; People v. Cobb , 72 A.D.3d 1565, 1567, 900 N.Y.S.2d 224 [4th Dept. 2010], lv denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010] ; People v. Hernandez , 62 A.D.3d 401, 401, 878 N.Y.S.2d 722 [1st Dept. 2009], lv denied 13 N.Y.3d 797, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). We reject defendant's further contention that the court erred in denying his request for a new attorney at sentencing (see People v. Bethany , 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert denied ––– U.S. ––––, 138 S. Ct. 1571, 200 L.Ed.2d 760 [2018] ; People v. Johnson , 292 A.D.2d 871, 871, 738 N.Y.S.2d 916 [4th Dept. 2002], lv denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614 [2002] ).
To the extent reviewable on direct appeal, defendant's ineffective assistance of counsel claim is without merit (see People v. Linder , 170 A.D.3d 1555, 1559-1560, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ; People v. Vargas , 72 A.D.3d 1114, 1119-1120, 898 N.Y.S.2d 323 [3d Dept. 2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). Defendant's remaining contentions are unpreserved for appellate review, and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ; People v. Lathrop , 171 A.D.3d 1473, 1475, 99 N.Y.S.3d 152 [4th Dept. 2019], lv denied 33 N.Y.3d 1106, 106 N.Y.S.3d 668, 130 N.E.3d 1278 [2019] ; People v. Shannon , 269 A.D.2d 839, 839, 703 N.Y.S.2d 764 [4th Dept. 2000] ).