PEOPLE v. ROBINSON (2021)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of two counts of grand larceny in the fourth degree (Penal Law § 155.30 [1]) and one count each of petit larceny (§ 155.25) and scheme to defraud in the first degree (§ 190.65 [1]), defendant contends that he was denied the right to appear before the grand jury and that he was deprived of effective assistance of counsel by his attorney's failure to effectuate his desire to testify before the grand jury. We reject those contentions. Although “the right to testify before a grand jury is significant and ‘must be scrupulously protected’ ․, ‘a prospective defendant has no constitutional right to testify before the [g]rand [j]ury’ ” (People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016]). Moreover, even when it is due to attorney error, “a ‘[d]efense counsel's failure to timely facilitate defendant's intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel’ ” (id. at 787, 28 N.Y.S.3d 1, 48 N.E.3d 58). Here, Supreme Court properly denied defendant's motion to dismiss the indictment based on an alleged violation of his right to testify before the grand jury because it is undisputed that defendant failed to invoke that right in accordance with the strict requirements of CPL 190.50 (see People v. Kirk, 96 A.D.3d 1354, 1358-1359, 945 N.Y.S.2d 818 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013]). We further conclude that defendant's related contention that he was deprived of effective assistance of counsel lacks merit (see People v. Hall, 169 A.D.3d 1379, 1380, 92 N.Y.S.3d 504 [4th Dept. 2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 274, 124 N.E.3d 763 [2019]; People v. Smith, 121 A.D.3d 1568, 1569, 992 N.Y.S.2d 831 [4th Dept. 2014], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016]).

We reject defendant's further contention that the court erred in granting his request to proceed pro se. The record establishes that defendant made a “knowing, voluntary and intelligent waiver of the right to counsel” (People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002]). Defendant's request was unequivocal and was not made as an alternative to seeking substitute counsel (see People v. Paulin, 140 A.D.3d 985, 987, 33 N.Y.S.3d 459 [2d Dept. 2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016]), and the court made the requisite inquiry to ascertain that defendant understood the “risks inherent in proceeding pro se, and ․ the singular importance of the lawyer in the adversarial system of adjudication” (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998]; see e.g. People v. Chess, 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018]; People v. Spirles, 275 A.D.2d 980, 981, 713 N.Y.S.2d 434 [4th Dept. 2000], lv denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87 [2001]).

Defendant failed to preserve for our review his contention that his right to a fair trial was violated because he was required to wear jail attire at trial (see People v. Irizarry, 160 A.D.3d 1384, 1385, 76 N.Y.S.3d 317 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018]; People v. Brown, 256 A.D.2d 1110, 1110, 685 N.Y.S.2d 157 [4th Dept. 1998], lv denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999]), and we decline to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant further contends that the conviction is not supported by legally sufficient evidence with respect to the issue of his intent. Defendant failed to preserve that contention for our review inasmuch as his “motion for a trial order of dismissal was not specifically directed at the issues raised on appeal” (People v. Pittman, 109 A.D.3d 1080, 1082, 971 N.Y.S.2d 600 [4th Dept. 2013], lv denied 22 N.Y.3d 1043, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013]; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that there is a “valid line of reasoning and permissible inferences” that could lead a rational person to conclude beyond a reasonable doubt (People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011]) that defendant did not act under a good faith claim of right (see generally People v. Kachadourian, 184 A.D.3d 1021, 1027, 126 N.Y.S.3d 786 [3d Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 533, 158 N.E.3d 550 [2020]; People v. Hurst, 113 A.D.3d 1119, 1120, 978 N.Y.S.2d 556 [4th Dept. 2014], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014], reconsideration denied 23 N.Y.3d 1021, 992 N.Y.S.2d 804, 16 N.E.3d 1284 [2014]) and that when defendant took deposits from the victims, he was acting with the intent required for the larceny and scheme to defraud counts. Consequently, we conclude that the evidence is legally sufficient to support the conviction (see People v. McCoy, 188 A.D.3d 1262, 1262, 132 N.Y.S.3d 839 [2d Dept. 2020], lv denied 36 N.Y.3d 1058, 141 N.Y.S.3d 776, 165 N.E.3d 702 [2021]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Defendant further contends that the verdict is against the weight of the evidence. 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 People established beyond a reasonable doubt that defendant did not have a subjective, good faith belief that he had a claim of right to the property (cf. People v. Rios, 107 A.D.3d 1379, 1381-1382, 966 N.Y.S.2d 626 [4th Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014]; see generally People v. Zona, 14 N.Y.3d 488, 492-493, 902 N.Y.S.2d 844, 928 N.E.2d 1041 [2010]) and, moreover, that defendant acted with the requisite intent regardless of whether he had such a belief. Consequently, we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).