PEOPLE v. PETTAWAY (2006)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 24, 2003, convicting defendant, after a jury trial, of six counts of criminal possession of a weapon in the third degree, seven counts of criminal possession of a weapon in the fourth degree and nineteen counts of criminal sale of a firearm in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 87 1/212 to 133 years, unanimously affirmed.

 The court properly exercised its discretion in admitting uncharged crimes evidence relating to firearms transactions in Virginia, since these transactions, along with the numerous charged transactions, were all part of a common scheme or plan whereby defendant and his accomplices acquired firearms in Virginia and sold them in New York (see People v. Duffy, 212 N.Y. 57, 66-71, 105 N.E. 839 [1914] ), and since the uncharged crimes evidence was inextricably linked with the trial evidence, completed the narrative, and explained how defendant was able to obtain large quantities of firearms to sell (see People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] ).   This evidence was admissible because its probative value outweighed its prejudicial effect, and the People were not also required to prove that the evidence was necessary (People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ).   To the extent that defendant is raising a constitutional claim regarding this evidence, such claim is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it.   It is questionable whether uncharged crimes evidence presents a constitutional issue to begin with, since, in Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S.Ct. 475, 116 L.Ed.2d 385 [1991], the Supreme Court of the United States expressed “no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes' evidence to show propensity to commit a charged crime.”   In any event, here the evidence was admitted, with thorough limiting instructions, for legitimate non-propensity purposes.

 The court properly exercised its discretion in denying defendant's post-trial request for new counsel.   Defendant received a full opportunity to be heard, and his unelaborated complaint simply expressed general disagreement with counsel over trial strategy, which was not good cause upon which to assign new counsel for sentencing, and which did not require a more extended inquiry (see People v. Sides, 75 N.Y.2d 822, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).   Furthermore, the record establishes that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ) at both trial and sentencing.

Defendant's challenges to the sufficiency of the evidence and to the court's charge are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal.

We perceive no basis for reducing the sentence, which, we note, is deemed by operation of law to be a sentence of 20 years (see Penal Law § 70.30[1][e][ii][A] ).