PEOPLE v. RUFUS (2008)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of the People's witnesses was not “ ‘so unworthy of belief as to be incredible as a matter of law’ ․ and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Woods, 26 A.D.3d 818, 819, 810 N.Y.S.2d 274, lv. denied 7 N.Y.3d 756, 765, 819 N.Y.S.2d 882, 890, 853 N.E.2d 253, 261;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to the further contention of defendant, County Court did not err in relieving his first and second attorneys from their representation of him.   The court relieved defendant's first attorney of his representation of defendant after learning that the attorney was representing another defendant who had given a statement implicating defendant in this case.   Under the circumstances, the “continued representation of defendant by [the first] attorney would create an actual conflict of interest as well as a likelihood of violating the ‘advocate-witness' and ‘unsworn witness' rules ․, and that waiver of conflict-free representation would not cure these defects” (People v. Gordon, 272 A.D.2d 133, 134, 709 N.Y.S.2d 503, lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786;  see People v. Jones, 2 A.D.3d 1397, 1398-1399, 768 N.Y.S.2d 881, lv. denied 2 N.Y.3d 742, 746, 778 N.Y.S.2d 467, 471, 810 N.E.2d 920, 924;  People v. Blaylock, 266 A.D.2d 400, 697 N.Y.S.2d 522, lv. denied 94 N.Y.2d 877, 705 N.Y.S.2d 9, 726 N.E.2d 486).   With respect to the second attorney, the record establishes that defendant asked the court to discharge that attorney, and thus defendant will not be heard to contend that the court erred in doing so.

 Finally, defendant failed to move to disqualify certain sworn jurors as grossly unqualified to serve and failed to object to the court's inquiry of those jurors.   Defendant thus failed to preserve for our review his contention that the court should have discharged those jurors (see People v. Clark, 28 A.D.3d 1190, 815 N.Y.S.2d 387;  People v. Haberer, 24 A.D.3d 1283, 1284, 805 N.Y.S.2d 904, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253, 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72;  People v. Wright, 16 A.D.3d 1113, 790 N.Y.S.2d 800, lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: