| People v Richens |
| 2014 NY Slip Op 50813(U) [43 Misc 3d 140(A)] |
| Decided on May 9, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Salvatore J. Modica, J.), rendered June 18, 2012. The judgment convicted defendant, upon a jury verdict, of petit larceny and criminal possession of stolen property in the fifth degree.
ORDERED that the judgment of conviction is affirmed, and the matter is remitted to the Criminal Court for further proceedings pursuant to CPL 460.50 (5).
Defendant, who was an employee of a cargo and mail handling company at John F. Kennedy International Airport, was convicted of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40), in connection with a theft of United States mail. Defendant and co-defendant Etzer Metellus (see People v Metellus, ___ Misc 3d ___, 2014 NY Slip Op ______ [Appeal No. 2012-2038 Q CR], decided herewith) placed a quantity of mail in a company minivan, intending to steal the mail. Shortly thereafter, the co-defendant, who was driving the minivan, was apprehended.
Defendant and co-defendant Etzer Metellus were represented by one attorney at their joint trial—Metellus' sister. Defendant contends that he was not afforded the effective assistance of counsel on several grounds. First, he claims that his waivers of his right to separate representation and of his attorney's potential conflict were invalid.
The Criminal Court conducted two extensive inquiries pursuant to People v Gomberg (38 NY2d 307 [1975]), during which every potential risk regarding dual representation was discussed. Defendant was informed, and repeatedly acknowledged his understanding, of all "of the possible ramifications which joint representation might spawn when conflicting interests arguably exist" (People v Macerola, 47 NY2d 257, 263 [1979]). Based on the extensive Gomberg inquiries, we find that defendant validly waived his right to separate representation and his attorney's conflict (see People v Solomon, 20 NY3d 91, 95 [2012] People v Longtin, 92 NY2d 640, 644 [1998]). Defendant informed the trial court, on the record, after the court had apprised him of the potential conflicts, which he had fully discussed with counsel, that he wanted counsel to continue to represent him. Thus, the waiver was valid, and defendant was not deprived of the effective assistance of trial counsel (see People v Taylor, 52 AD3d 1327, 1328 [2008] People v Floyd, 45 AD3d 1457, 1459 [2007] People v Smith, 34 AD3d 1313 [2006] People v Walker, 2 AD3d 1358, 1359 [2003] People v Griffin, 249 AD2d 244, 245 [1998]). The fact that defendant was represented by the co-defendant's sister does not render the conflict unwaivable (see People v Glinton, 72 AD3d 618, 618-619 [2010] see also Lace v United States, [*2]736 F2d 48 [2d Cir 1984] Cudd v Ozmint, 2009 US Dist LEXIS 88607 [D SC 2009]). Moreover, even if defendant's waiver were not valid, defendant has not established " that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation' " (People v Konstantinides, 14 NY3d 1, 10 [2009], quoting People v Ortiz, 76 NY2d 652, 657 [1990] see People v Adeola, 51 AD3d 811, 812 [2008]).
Defendant's contention that counsel's representation was deficient because the People's evidence against the co-defendant was stronger than the evidence against him is without merit. The core of the People's case consisted of evidence that both defendants had placed mail in a company van in an area where there were no security cameras. Moreover, even were the evidence against the co-defendant stronger than the evidence against defendant, that "hardly is unusual and does not afford the latter with an adequate ground for" separate representation (People v Peisahkman, 29 AD3d 352, 353 [2006]). In any event, defendant's counsel pursued the defense that neither defendant intended to steal United States mail, and instead, were doing their jobs and acting in accordance with the instructions of their superiors (see People v St. Andrews,82 AD3d 1358, 1360-1361 [2011]).
Contrary to defendant's contention, counsel was not ineffective because she failed to request that the trial court provide the jury with an instruction on a claim of right defense (see Penal Law § 155.15 [a]). Viewing the evidence in the light most favorable to defendant (People v Zona, 14 NY3d 488, 493 [2010]), defendant did not have a subjective, good faith basis to believe that he could keep the allegedly stolen United States mail (see Penal Law § 155.15 [1] People v Zona, 14 NY3d at 493; People v Rios, 107 AD3d 1379, 1381-1382 [2013] People v Cunningham, 12 AD3d 1131, 1132 [2004] cf. People v Ace, 51 AD3d 1379, 1380 [2008] People v Moscato, 251 AD2d 352, 352-353 [1998] People v Ricchiuti, 93 AD2d 842, 842-843 [1983]).
The Criminal Court did not err in permitting the prosecutor to present evidence that, in 2006, the co-defendant, who at the time was employed by Jet Blue Airlines, had committed an act similar to the alleged acts in this case. Notwithstanding the similarity of the acts, "knowledge and intent could not be easily inferred from mere possession" of the mail by the co-defendant (People v Bailey, 21 AD3d 383, 384 [2005] see People v Molineux, 168 NY 264 [1901] People v Brown, 107 AD3d 1145, 1146-1147 [2013] People v Taylor, 71 AD3d 1467 [2010] People v Versage, 48 AD3d 254, 255 [2008] People v Bourne, 46 AD3d 1101 [2007]). The court minimized the potential for prejudice against defendant by providing the jury with explicit limiting instructions that the prior bad act evidence could not be used against, and was not applicable to, defendant, and that it could not be considered to prove that the co-defendant had a propensity or predisposition to commit the crimes with which he was charged (see People v Garrett, 88 AD3d 1253, 1254 [2011] People v Versage, 48 AD3d at 255; People v Dickson, 21 AD3d 646, 647 [2005] cf. People v Sayers, 64 AD3d 728, 730-731 [2009]). The claim that the court should have limited the prior bad act evidence, and that counsel was ineffective based on her failure to request that such evidence be limited, is without merit (see People v Morris, 21 NY3d 588, 596 [2013] cf. People v Resek, 3 NY3d 385, 389-390 [2004]).
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as his motion for a trial order of dismissal did not specify the specific grounds he raises on appeal (see CPL 470.05 [2] People v Hawkins, 11 NY3d 484, 492 [2008] People v Hines, 97 NY2d 56, 61 [2001] People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that there was legally sufficient evidence to establish defendant's guilt beyond a reasonable doubt, in that he possessed the mental culpability necessary to commit the crimes charged, and that, in furtherance thereof, he intentionally aided the co-defendant (see People v Bailey, 94 AD3d 904, 905 [2012] Penal Law § 20.00).
Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] People v Danielson, 9 NY3d 342, 348-349 [2007]), [*3]we accord great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004] People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict convicting defendant of petit larceny and criminal possession of stolen property in the fifth degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982] People v Kent, 30 Misc 3d 134[A], 2011 NY Slip Op 50087[U] [App Term, 9th & 10th Jud Dists 2011]).
Accordingly, the judgment of conviction is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.