PEOPLE v. SPENCER (2020)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of gang assault in the first degree (Penal Law § 120.07), assault in the first degree (§ 120.10 [1] ), and promoting prison contraband in the first degree (§ 205.25 [2] ). Although defendant was offered the opportunity to plead guilty to one count of assault in the second degree in exchange for a determinate term of seven years' incarceration to run concurrently to the much longer sentence that he was already serving, defendant rejected that offer. After trial, defendant was sentenced to a combination of consecutive and concurrent sentences that aggregated to 23 to 26 years of incarceration, to run consecutively to any undischarged term of incarceration.

Defendant contends that the jury instruction on accessorial liability given by County Court failed to convey that it applied to the count of assault in the first degree instead of the count of promoting prison contraband in the first degree. By failing to object to the “jury charge as given,” however, defendant failed to preserve his contention for our review (People v. Clark, 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017]; see People v. Keegan, 133 A.D.3d 1313, 1315, 20 N.Y.S.3d 796 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016]; see generally CPL 470.05 [2]). In any event, we conclude that “the charge as a whole adequately conveyed to the jury the appropriate standards” (People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946 [1987]) and did not otherwise change the prosecutor's theory of the case (see generally People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995]; People v. Duncan, 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978]).

We reject defendant's further contention that the court erred in refusing his request for a substitution of assigned counsel. The court fulfilled its duty to inquire into those complaints about defense counsel that were supported by sufficiently specific factual allegations and were of sufficient seriousness (see generally People v. Porto, 16 N.Y.3d 93, 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010]; People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978]) and did not abuse its discretion in determining that defendant had not established “good cause for substitution” (People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]). Defendant's remaining complaints consisted of vague and conclusory allegations of conflicts and disagreements with defense counsel that were “not sufficiently specific to require a minimal inquiry by the court, and certainly did not warrant a grant of his [request]” (Porto, 16 N.Y.3d at 101, 917 N.Y.S.2d 74, 942 N.E.2d 283).

Defendant next contends that his attorney was ineffective in failing to, among other things, adequately communicate with him about the People's plea offer. That contention involves “discussions between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10” (People v. Manning, 151 A.D.3d 1936, 1938, 59 N.Y.S.3d 229 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 135, 89 N.E.3d 525 [2017]; see People v. Dale, 142 A.D.3d 1287, 1290, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017]; People v. Stachnik, 101 A.D.3d 1590, 1591, 956 N.Y.S.2d 777 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013]). Although defendant has a variety of other complaints about defense counsel's performance at trial, viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).