PEOPLE v. ODOM (2008)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of three counts of assault in the second degree (Penal Law § 120.05[3], [7] ) and one count of promoting prison contraband in the first degree (§ 205.25[2] ).   Contrary to the contention of defendant, he was not denied his right to proceed pro se.   It is well settled that “[a] defendant's request to represent himself [or herself] ‘must be invoked clearly and unequivocally’ ” (People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92, quoting People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341), and the record establishes that defendant failed to do so in a timely manner.   Indeed, defendant did not raise any issue with respect to defense counsel's representation until after the close of evidence at trial, and the record does not support the contention of defendant that County Court advised him “that he did not need to make such an assertion” in this case.   After the court appointed counsel to assist defendant “in any way you request,” defense counsel appeared on behalf of defendant at every subsequent proceeding, including the jury trial, and we conclude that, because defendant failed to invoke his right to represent himself “clearly and unequivocally” before the close of evidence at trial, he will not now be heard to contend that he was denied that right (Gillian, 8 N.Y.3d at 88, 828 N.Y.S.2d 277, 861 N.E.2d 92;  see People v. Mitchell, 42 A.D.3d 758, 761, 839 N.Y.S.2d 339, lv. denied 9 N.Y.3d 963, 848 N.Y.S.2d 32, 878 N.E.2d 616).

 Defendant concedes that he made only a general motion to dismiss and thus failed to preserve his challenge to the legal sufficiency of the evidence supporting the conviction of promoting prison contraband in the first degree (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that it is legally sufficient to support the conviction of that crime (see People v. Vancleave, 286 A.D.2d 941, 942, 730 N.Y.S.2d 758, lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409, cert. denied 537 U.S. 1052, 123 S.Ct. 607, 154 L.Ed.2d 529;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Here, the People alleged that defendant possessed a “dangerous knife,” and there is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that the sharpened toothbrush found on defendant's person was a dangerous knife (see generally People v. Slade, 140 A.D.2d 885, 887, 528 N.Y.S.2d 703).   Defendant failed to preserve for our review his further contention that the court changed the theory of the prosecution with respect to that crime by failing to instruct the jury that it must find that the contraband that defendant possessed was a dangerous knife (see generally People v. Halberg, 254 A.D.2d 808, 809, 679 N.Y.S.2d 763;  People v. Klumbach, 202 A.D.2d 1009, 1010, 609 N.Y.S.2d 729, lv. denied 83 N.Y.2d 912, 614 N.Y.S.2d 394, 637 N.E.2d 285).   In any event, that contention is without merit because “the indictment charged more than the People were required to prove under the statute ․, and the trial court's charge did not usurp the grand jury's powers or change the theory of the prosecution” (People v. Caldarola, 45 A.D.3d 600, 601, 845 N.Y.S.2d 117;  see People v. Charles, 61 N.Y.2d 321, 326-328, 473 N.Y.S.2d 941, 462 N.E.2d 118).   Additionally, “because the theory of the defense was that [defendant never possessed the dangerous knife], defendant was not prejudiced by the variation [in the court's charge]” (People v. Buanno, 296 A.D.2d 600, 601, 745 N.Y.S.2d 590, lv. denied 98 N.Y.2d 695, 747 N.Y.S.2d 413, 776 N.E.2d 2).

 Contrary to the further contention of defendant, he was not denied effective assistance of counsel when defense counsel opened the door to the admissibility of an audiotaped interview of defendant by a State Police investigator (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The interview was admissible in any event, and thus defendant failed to demonstrate that defense counsel's acts “ ‘prejudice [d] the defense or defendant's right to a fair trial’ ” (People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Although defendant further contends that defense counsel was ineffective in introducing various written reports prepared by prison staff concerning the incident, defendant failed “to demonstrate ‘the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” (id. at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Likewise, defendant's numerous claims that defense counsel was ineffective for failing to object to questions asked of various prosecution witnesses on relevancy, hearsay or other grounds “are based largely on his hindsight disagreements with defense counsel's trial strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies” (People v. Morrison, 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495;  see Benevento, 91 N.Y.2d at 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Additionally, “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).   Thus, it cannot be said that defense counsel was ineffective in failing to preserve for our review defendant's present challenge to the legal sufficiency of the evidence with respect to the crime of promoting prison contraband and defendant's present challenges to the jury charge.

 We reject the further contention of defendant that he was denied his right to a fair trial based on numerous erroneous evidentiary rulings.  “Trial courts are accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal” (People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084;  see People v. Whitlatch, 294 A.D.2d 909, 742 N.Y.S.2d 752, lv. denied 98 N.Y.2d 703, 747 N.Y.S.2d 422, 776 N.E.2d 11).   Although we agree with defendant that the court erred in overruling defendant's objection to testimony in response to the prosecutor's question concerning the “precautionary medicines” that a correction officer took after defendant bit his finger, we conclude that the sole error of the court with respect to that evidentiary ruling is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the admission of that testimony (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

As defendant correctly concedes, he failed to preserve for our review his contention that the court's Sandoval ruling constitutes an abuse of discretion (see CPL 470.05[2];  People v. Jackson, 46 A.D.3d 1408, 847 N.Y.S.2d 800, lv. denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87), 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] ).   Finally, defendant waived his challenge to the racial composition of the jury panel inasmuch as he first raised that challenge after the jury had returned its verdict (see CPL 270.10[2];  People v. Hardy, 38 A.D.3d 1169, 1170, 832 N.Y.S.2d 722, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 895, 872 N.E.2d 1201).

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

MEMORANDUM: