Opinion
2018–08480 Ind.No. 2657/17
12-09-2020
The PEOPLE, etc., respondent, v. Kevin NELSON, appellant.
Paul Skip Laisure, New York, N.Y. (Emily T. Lurie of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Emily T. Lurie of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., HECTOR D. LASALLE, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered May 30, 2018, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to support the defendant's conviction of grand larceny in the third degree (see Penal Law § 155.35[1] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the Supreme Court erred in failing to give a claim of right instruction is unpreserved for appellate review because the defendant failed to request such an instruction at the charge conference and acquiesced to the charge as given (see CPL 470.05[2] ). In any event, because no reasonable view of the evidence would have supported a claim of right defense, the court was under no obligation to submit the question to the jury (see People v. Brown, 33 N.Y.3d 316, 321, 102 N.Y.S.3d 143, 125 N.E.3d 808 ; People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ).
Contrary to the defendant's contention, the Supreme Court's response to a particular jury note, after both sides were allowed to read the note, of repeating the original instructions pertaining to the charge of grand larceny in the third degree, grand larceny in the fourth degree, and criminal possession of a forged instrument in the second degree, was meaningful (see People v. Santi, 3 N.Y.3d 234, 785 N.Y.S.2d 405, 818 N.E.2d 1146 ; People v. Gonsalez, 144 A.D.3d 841, 40 N.Y.S.3d 542 ), and the defendant suffered no discernible prejudice from the court's handling of the note (see People v. Harriott, 181 A.D.3d 863, 119 N.Y.S.3d 899 ; People v. Battle, 15 A.D.3d 413, 790 N.Y.S.2d 477 ).
Contrary to the defendant's contention, he was not deprived of the right to present a defense as a result of the Supreme Court's determination denying defense counsel's application for a two-week adjournment. Defense counsel made that application because "[p]rior to" the day before the trial was scheduled to commence, he "had not met with [the defendant] in person for at least a month" and "had not done really any trial preparation in the past several weeks for this case." This application was later modified to a request for a six-day adjournment (see People v. Spears, 24 N.Y.3d 1057, 999 N.Y.S.2d 818, 24 N.E.3d 1082 ; People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003 ; People v. Stewart, 89 A.D.3d 1044, 933 N.Y.S.2d 112 ; People v. Jackson, 41 A.D.3d 498, 838 N.Y.S.2d 108 ). Where the protection of fundamental rights is involved, the trial court's discretion is "more narrowly construed" ( People v. Spears, 64 N.Y.2d 698, 485 N.Y.S.2d 521, 474 N.E.2d 1189 ; see People v. Foy, 32 N.Y.2d 473, 476–477, 346 N.Y.S.2d 245, 299 N.E.2d 664 ). Here, the court's explanation of its timeline, including three days of jury selection, followed by one day off, and the fact that the bulk of the People's case would not go on until the following week, established that defense counsel was provided with ample opportunity to confer with the defendant, and therefore, the defendant was not prejudiced by the court's denial of defense counsel's application (see People v. Newton, 149 A.D.3d 874, 51 N.Y.S.3d 198 ; People v. Brown, 90 A.D.3d 545, 934 N.Y.S.2d 414 ; People v. Jones, 299 A.D.2d 162, 753 N.Y.S.2d 361 ). Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his request for new assigned counsel, made prior to the commencement of jury selection. " ‘The 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. King, 161 A.D.3d 772, 774, 77 N.Y.S.3d 70, quoting People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). A trial court's duty to consider substitution arises "only where [the] defendant makes a ‘seemingly serious request[ ]’ " ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Here, the record does not support the conclusion that the defendant's request was based on specific factual allegations of a serious complaint about his counsel (see People v. Stevens, 162 A.D.3d 1077, 75 N.Y.S.3d 539 ; People v. McErlean, 149 A.D.3d 872, 51 N.Y.S.3d 616 ; People v. Ward, 121 A.D.3d 1026, 994 N.Y.S.2d 675 ).
The defendant's contention that the search of his historical cellular telephone site location information (hereinafter CSLI) records obtained by means of an attorney subpoena violated the Fourth Amendment (see Carpenter v. United States, 585 U.S. ––––, 138 S Ct 2206, 201 L.Ed.2d 507 ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Brown, 181 A.D.3d 701, 117 N.Y.S.3d 852 ; People v. Vale, 177 A.D.3d 685, 113 N.Y.S.3d 705 ; People v. Taylor, 172 A.D.3d 1110, 98 N.Y.S.3d 456 ; People v. Clark, 171 A.D.3d 942, 97 N.Y.S.3d 711 ). In any event, any error in the Supreme Court's admission of the defendant's CSLI records was harmless, because the evidence of the defendant's guilt was overwhelming, and there was no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Taylor, 172 A.D.3d at 1111, 98 N.Y.S.3d 456 ).
Contrary to the defendant's contention, he was not deprived of his right to the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The defendant's remaining contention is without merit.
CHAMBERS, J.P., LASALLE, IANNACCI and CHRISTOPHER, JJ., concur.