Opinion
623 KA 20-00957
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Patrick PONZO, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, burglary in the first degree ( Penal Law § 140.30 [4] ) and attempted robbery in the first degree (§§ 110.00, 160.15 [4]), defendant contends that County Court erred in refusing to suppress certain statements that he made to a State Trooper, on the ground that he was in custody at the time and had not received Miranda warnings. Contrary to defendant's contention, the record of the suppression hearing establishes that defendant was not in custody at the time he made the relevant statements (see People v. Lewis , 39 A.D.3d 1279, 1279, 835 N.Y.S.2d 794 [4th Dept. 2007], lv denied 9 N.Y.3d 866, 840 N.Y.S.2d 896, 872 N.E.2d 1202 [2007] ) and therefore Miranda warnings were not required (see People v. Paulman , 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ; People v. Hughes , 199 A.D.3d 1332, 1334, 157 N.Y.S.3d 203 [4th Dept. 2021] ).
We reject defendant's further contention that the court abused its discretion in failing to conduct a minimal inquiry into defendant's request for assignment of substitute counsel (see generally People v. Porto , 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). "[W]here a defendant makes a seemingly serious request for new counsel, the court must make some minimal inquiry to determine whether the claim is meritorious" ( People v. Robinson , 195 A.D.3d 1527, 1528, 148 N.Y.S.3d 314 [4th Dept. 2021] ; see People v. Sides , 75 N.Y.2d 822, 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). Here, defendant's motion seeking the assignment of new counsel contained "conclusory assertions that he and defense counsel disagreed about trial 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] ) and that defense counsel was ineffective (see People v. Barnes , 156 A.D.3d 1417, 1418, 67 N.Y.S.3d 373 [4th Dept. 2017], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018] ), as well as "general assertions of dissatisfaction with defense counsel's representation" ( People v. Lewicki , 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ). Therefore, defendant did not make the requisite "seemingly serious request" to warrant an inquiry as to whether he was entitled to assignment of substitute counsel ( Robinson , 195 A.D.3d at 1528, 148 N.Y.S.3d 314 ; see Brady , 192 A.D.3d at 1558, 140 N.Y.S.3d 846 ; Lewicki , 118 A.D.3d at 1329, 987 N.Y.S.2d 755 ).
Furthermore, we conclude that, "[b]y making only a general motion to dismiss the charges ... after the People rested their case ..., and by failing to renew ... the motion at the close of his case ..., defendant failed to preserve his contention that his conviction ... is not supported by legally sufficient evidence" ( People v. Morris , 126 A.D.3d 1370, 1371, 6 N.Y.S.3d 815 [4th Dept. 2015], lv denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ). In any event, 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 (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.