PEOPLE v. HUTCHINSON (2008)

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered January 20, 2006, upon a verdict convicting defendant of two counts of the crime of assault in the second degree.

Defendant was indicted by a Chemung County grand jury on one count of assault in the first degree, one count of attempted rape in the first degree and two counts of assault in the second degree in connection with the brutal beating of a female correction counselor employed at the prison where defendant was incarcerated.   Following a jury trial, defendant was convicted of two counts of assault in the second degree, and was acquitted of assault in the first degree and attempted rape in the first degree.   Defendant was subsequently sentenced, as a persistent felony offender, to 25 years to life for each count, such sentences to run concurrently with each other but consecutive to a prior sentence on unrelated charges.   Defendant now appeals and we affirm.

 We reject defendant's claims of ineffective assistance of counsel based on conduct that allegedly occurred prior to sentencing.¹  Some of the conduct about which defendant complains-such as counsel's failure to instruct defendant on how to properly answer certain questions when testifying during the trial and to properly prepare for the persistent felony offender hearing-are not a part of the record and, therefore, are not a proper subject for our review on this direct appeal;  rather, the appropriate remedy is first by way of a CPL article 440 motion (see People v. Cruz, 53 A.D.3d 986, 863 N.Y.S.2d 274 [2008];  People v. Douglas, 38 A.D.3d 1063, 1064, 831 N.Y.S.2d 585 [2007], lv. denied 9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ).   We have also examined defendant's claims with regard to counsel's failure to request an intoxication charge and a missing witness charge and find them to be unsupported by the record (see Vetere v. Garcia, 211 A.D.2d 631, 632, 621 N.Y.S.2d 362 [1995];  Arroyo v. City of New York, 171 A.D.2d 541, 542-543, 567 N.Y.S.2d 257 [1991] ).   With respect to the remaining claims of ineffective assistance of counsel, defendant has failed “ ‘to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Madison, 31 A.D.3d 974, 975, 818 N.Y.S.2d 364 [2006], lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 [2006] ), or to “ ‘demonstrate that his attorney failed to provide meaningful representation’ in light of the circumstances of [this] case, viewed in totality” (People v. Madison, 31 A.D.3d at 975, 818 N.Y.S.2d 364, quoting People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000];  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), particularly in view of defendant's acquittal on two of the top counts of the indictment.

 Likewise, we find no merit to defendant's contention that County Court erred when it considered and denied his pro se motion to set aside the verdict on the ground of ineffective assistance of counsel without appointing new representation.   It is well settled that a “defendant's right to counsel [is] adversely affected when his [or her] attorney, either voluntarily or at the court's urging, [becomes] a witness against him [or her]” (People v. Santana, 156 A.D.2d 736, 737, 550 N.Y.S.2d 356 [1989];  see People v. Rozzell, 20 N.Y.2d 712, 713, 282 N.Y.S.2d 775, 229 N.E.2d 452 [1967];  People v. Sawyer, 55 A.D.3d 949, ----, 865 N.Y.S.2d 378, 380 [2008];  People v. Mills, 45 A.D.3d 892, 895-896, 844 N.Y.S.2d 492 [2007], lv. denied 9 N.Y.3d 1036, 852 N.Y.S.2d 22, 881 N.E.2d 1209 [2008];  People v. Milazo, 33 A.D.3d 1060, 1061, 822 N.Y.S.2d 332 [2006], lv. denied 8 N.Y.3d 883, 832 N.Y.S.2d 495, 864 N.E.2d 625 [2007] ).   Regardless of the nature of the allegations contained in a pro se motion, defense counsel has “no duty to support a motion that he [or she] determined to be without merit” (People v. Jones, 261 A.D.2d 920, 920, 690 N.Y.S.2d 366 [1999], lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103 [1999] );  a lack of such support does not constitute a position adverse to the client (see People v. Vasquez, 70 N.Y.2d 1, 4, 516 N.Y.S.2d 921, 509 N.E.2d 934 [1987] ).

 Here, although defense counsel advised County Court that he was unable to represent defendant with respect to any contentions of ineffective assistance, counsel made no statements on the record disputing those contentions.   Since defendant's attorney did not take a position adverse to defendant in his pro se motion to set aside the verdict, County Court was not required to appoint new counsel before determining the motion (see People v. Vasquez, 70 N.Y.2d at 4, 516 N.Y.S.2d 921, 509 N.E.2d 934;  People v. Jones, 261 A.D.2d at 920, 690 N.Y.S.2d 366).²  Based on County Court's unique ability to assess the circumstances, including the evidence at trial, we also find no error in the denial of the motion.

 Next, we find that County Court properly sentenced defendant as a persistent felony offender.   The record evidence established beyond a reasonable doubt that defendant had previously been convicted of two or more felonies (see Penal Law § 70.10[1] );  in fact, defendant acknowledged his prior felony convictions and did not allege any constitutional violations relating thereto.   In addition, a reading of the record establishes that County Court conducted a proper examination of defendant's “history and character” and “the nature and circumstances of his criminal conduct” (Penal Law § 70.10[2] ) and made the requisite findings prior to imposing sentence to support the conclusion that the public interest will best be served by an extended period of incarceration and lifetime supervision (see Penal Law § 70.10[2];  People v. Andre, 232 A.D.2d 884, 885-886, 649 N.Y.S.2d 212 [1996], lv. denied 89 N.Y.2d 918, 654 N.Y.S.2d 720, 677 N.E.2d 292 [1996];  People v. Oliver, 96 A.D.2d 1104, 1105, 467 N.Y.S.2d 76 [1983], affd. 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242 [1984] ).

We have considered defendant's remaining contentions and, to the extent that they are preserved for our review, find them to be unavailing.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   We note that defendant's initial assigned counsel was replaced during pretrial proceedings at defendant's request.

2.   Notably, there was no request by defendant for new counsel for purposes of the motion or when counsel continued to represent him during the immediately ensuing persistent felony offender hearing and sentencing.

STEIN, J.

CARDONA, P.J., SPAIN, ROSE and MALONE JR., JJ., concur.