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.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered March 5, 2018. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
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 [4th Dept 2020], lv denied 35 N.Y.3d 1093 [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 [4th Dept 2019], lv denied 35 N.Y.3d 940 [2020]; see People v Scott, 172 A.D.3d 543, 544 [1st Dept 2019], lv denied 34 N.Y.3d 954 [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 [4th Dept 2010]; People v Cobb, 72 A.D.3d 1565, 1567 [4th Dept 2010], lv denied 15 N.Y.3d 803 [2010]; People v Hernandez, 62 A.D.3d 401, 401 [1st Dept 2009], lv denied 13 N.Y.3d 797 [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 [4th Dept 2016], lv denied 29 N.Y.3d 996 [2017], cert denied - U.S. -, 138 S.Ct. 1571 [2018]; People v Johnson, 292 A.D.2d 871, 871 [4th Dept 2002], lv denied 98 N.Y.2d 652 [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 [4th Dept 2019], lv denied 33 N.Y.3d 1071 [2019]; People v Vargas, 72 A.D.3d 1114, 1119-1120 [3d Dept 2010], lv denied 15 N.Y.3d 758 [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 [4th Dept 2019], lv denied 33 N.Y.3d 1106 [2019]; People v Shannon, 269 A.D.2d 839, 839 [4th Dept 2000]).