PEOPLE v. JENKINS (2023)

Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered November 29, 2018, convicting defendant, after a jury trial, of conspiracy in the fourth degree and criminal sale of a firearm in the third degree (four counts), and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.  The evidence established the geographic jurisdiction of New York State over each offense based on defendant's acts and the acts of his accomplices (see Penal Law § 20.00), notwithstanding that defendant was physically located in Virginia (see CPL 20.20[1][a],[2][d];  People v. Kassebaum, 95 N.Y.2d 611, 620, 721 N.Y.S.2d 866, 744 N.E.2d 694 [2001]).  The testimony, documentary evidence, and intercepted communications showed that defendant and several accomplices engaged in a firearm trafficking operation, in which one participant arranged to purchase and pick up firearms in several southern states and transported them to New York for resale.  Recorded conversations between defendant and the accomplice, viewed as a whole, supported reasonable inferences that defendant knowingly supplied the accomplice with four firearms, and that defendant was aware that the accomplice subsequently sold them in New York (see e. g. People v. Alvarez, 158 A.D.3d 587, 587, 73 N.Y.S.3d 137 [1st Dept. 2018], lv denied 31 N.Y.3d 1114, 81 N.Y.S.3d 374, 106 N.E.3d 757 [2018]).

The court providently exercised its discretion in denying defendant's request for new assigned counsel (see People v. Porto, 16 N.Y.3d 93, 99–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010];  People v. Colon, 145 A.D.3d 562, 44 N.Y.S.3d 25 [1st Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017]).  After defendant submitted a written motion, the court gave him an opportunity to elaborate on it orally, which defendant declined.  This constituted a suitable inquiry into his claims (see People v. Nelson, 7 N.Y.3d 883, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006]).  Defendant's assertion that counsel had failed to raise particular arguments is not supported by the record and did not provide good cause to relieve counsel on the eve of jury selection.

Defendant's related ineffective assistance of counsel claims, based on counsel's alleged failure to consult with him, raise certain arguments, and pursue particular strategies, are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.