THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2015)

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon a nonjury verdict of seven counts of grand larceny in the fourth degree (Penal Law § 155.30[4] ) and one count of criminal mischief in the fourth degree (§ 145.00[1] ).   In appeal No. 2, defendant appeals from a judgment convicting him upon a nonjury verdict of five counts of grand larceny in the fourth degree (§ 155.30[4] ), two counts of petit larceny (§ 155.25), and one count of criminal mischief in the fourth degree (§ 145.00[1] ).

With respect to the judgment in appeal No. 1, we reject defendant's contention that he was denied the right to testify before the grand jury and that County Court erred in denying his motion to dismiss the indictment on that ground.   The record establishes that defendant refused to testify before the grand jury when County Court (Connell, J.) determined, following a hearing, that he was not entitled to removal of the restraints that had been placed on him by correction officers (see generally People v. Best, 19 NY3d 739, 743).  “Inasmuch as defendant chose not to testify before the grand jury, it cannot be said that he was denied his statutory right to do so” (People v. Buccina, 62 AD3d 1252, 1254, lv denied 12 NY3d 913).   Although we agree with defendant that the court erred in failing to articulate on the record a rational basis for the restraints, we note that the prosecutor was directed by the court to provide a cautionary instruction to dispel any prejudice resulting from defendant testifying in restraints (see People v. Felder [appeal No. 2], 201 A.D.2d 884, 885, lv denied 83 N.Y.2d 871;  see also People v. Burroughs, 108 AD3d 1103, 1106, lv denied 22 NY3d 995;  People v. Pennick, 2 AD3d 1427, 1427–1428, lv denied 1 NY3d 632).   However, because he refused to testify, defendant has made it impossible for us to determine on the record before us whether his appearance before the grand jury “fail[ed] to conform to the requirements of article [190] to such degree that the integrity [of the grand jury proceeding was] impaired and prejudice to the defendant may [have] result[ed]” (CPL 210.35[5];  see Buccina, 62 AD3d at 1254).

We reject defendant's further contention in appeal No. 1 that County Court (DeMarco, J.), which issued the judgments in appeal Nos. 1 and 2, violated the “law of the case” by failing to conduct a Weaver hearing with respect to the placement of a GPS tracking device on a motor vehicle owned by defendant's sister (see People v. Weaver, 49 N.Y.2d 1012).   The record establishes that the GPS device was placed pursuant to a warrant and defendant failed to contest the warrant (see People v. Wilson, 82 AD3d 797, 797, lv denied 16 NY3d 901).

In appeal No. 2, defendant challenges the placement of a GPS device on a motor vehicle owned by a commercial car rental agency and rented to defendant's sister, but he failed to demonstrate a legitimate expectation of privacy in that vehicle (see People v. Lacey, 66 AD3d 704, 704–705, lv denied 14 NY3d 772).   The court therefore properly determined that defendant lacked standing to challenge the placement of the GPS device on that vehicle (see id. at 705).

Contrary to defendant's further contention in both appeals, the court properly determined that he forfeited his right to counsel by his persistent course of egregious conduct toward successive assigned counsel, consisting of threats and other abusive behavior (see People v. Wilkerson, 294 A.D.2d 298, 298–299, lv denied 98 N.Y.2d 772;  People v. Sloane, 262 A.D.2d 431, 432, lv denied 93 N.Y.2d 1027).   Defendant failed to preserve for our review his contention in both appeals that the court erred in failing to specify the offenses it would consider in rendering a verdict (see People v. Mitchell, 254 A.D.2d 830, 831, lv denied 92 N.Y.2d 984).  “In any event, the court's failure to comply with CPL 320.20(5) is harmless error inasmuch as defendant was convicted of offenses charged in the indictment, not lesser included offenses” (id.;   see People v. Wright, 16 AD3d 982, 983, lv denied 4 NY3d 892).

Finally, we reject defendant's contention in appeal No. 2 that the court abused its discretion in consolidating the indictments and denying his motion to sever (see People v. McCune, 210 A.D.2d 978, 978–979, lv denied 85 N.Y.2d 864).   Although based upon different criminal transactions, the offenses are the “same or similar in law” (CPL 200.20[2][c] ), and defendant failed to make a convincing showing that he had important testimony to give on one count and a genuine need to refrain from testifying on others (see People v. Burrows, 280 A.D.2d 132, 133–134, lv denied 96 N.Y.2d 826).

Frances E. Cafarell

Clerk of the Court