PEOPLE v. TERBORG (2018)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law

§ 140.30 [2] ) and intimidating a victim or witness in the second degree (§ 215.16[2] ).  Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to the element of physical injury (see People v. Lumpkin, 154 A.D.3d 966, 966–967, 63 N.Y.S.3d 461 [2d Dept. 2017], lv denied 30 N.Y.3d 1117, 77 N.Y.S.3d 342, 101 N.E.3d 983 [2018];  People v. Spratley, 96 A.D.3d 1420, 1420–1421, 946 N.Y.S.2d 361 [4th Dept. 2012];  People v. Porter, 304 A.D.2d 845, 845–846, 759 N.Y.S.2d 773 [3d Dept. 2003], lv denied 100 N.Y.2d 565, 763 N.Y.S.2d 822, 795 N.E.2d 48 [2003];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Contrary to defendant's contention, Supreme Court (Doyle, J.) properly disqualified the Monroe County Public Defender's Office from representing him (see People v. Terborg, 156 A.D.3d 1320, 1320, 67 N.Y.S.3d 730 [4th Dept. 2017] ).  To the extent that defendant also challenges a subsequent ruling of the court (Renzi, J.) adhering to the initial disqualification ruling, we conclude that the subsequent ruling was not an abuse of discretion (see People v. Beauchamp, 84 A.D.3d 507, 508, 923 N.Y.S.2d 70 [1st Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011];  see generally People v. Evans, 94 N.Y.2d 499, 506, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000], rearg. denied 96 N.Y.2d 755, 725 N.Y.S.2d 280, 748 N.E.2d 1076 [2001] ).  Contrary to defendant's further contention, the court did not err in denying his pretrial request to remove trial counsel inasmuch as defendant abandoned that request (see People v. Ragin, 136 A.D.3d 426, 427, 24 N.Y.S.3d 281 [1st Dept. 2016], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016] ).  Contrary to defendant's further contention, the court conducted a sufficient inquiry into his presentence request to remove trial counsel (see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ).

Contrary to defendant's contention, the court did not allow evidence of prior uncharged crimes to be introduced at trial.  To the extent that defendant challenges the court's refusal to declare a mistrial following the victim's unprompted mention of a prior criminal act by defendant, we conclude that the court's curative instruction to the jury was adequate to dissipate any prejudice (see People v. Spears, 140 A.D.3d 1629, 1630, 32 N.Y.S.3d 771 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016];  People v. Holton, 225 A.D.2d 1021, 1021, 640 N.Y.S.2d 708 [4th Dept. 1996], lv denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619 [1996] ).

Defendant failed to preserve for our review his contention that the Trial Justice should have recused himself, and we decline to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Pett, 74 A.D.3d 1891, 1892, 903 N.Y.S.2d 639 [4th Dept. 2010] ).  Defendant's claim of ineffective assistance of counsel is based on matters outside the record and must therefore be raised in a motion pursuant to CPL article 440 (see People v. Atkinson, 105 A.D.3d 1349, 1350, 963 N.Y.S.2d 884 [4th Dept. 2013], lv denied 24 N.Y.3d 958, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ).  The sentence is not unduly harsh or severe.  We have considered defendant's remaining contentions and conclude that none warrant reversal or modification of the judgment.

Finally, we note that the uniform sentence and commitment sheet recites an incorrect sentencing date of August 13, 2012 and must be corrected to reflect the correct sentencing date of August 16, 2012 (see generally People v. Pitcher, 126 A.D.3d 1471, 1473–1474, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ).