PEOPLE v. WALLACE

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Derric WALLACE, Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and SCUDDER, JJ. Barbara Greathead of counsel, Rochester, for defendant-appellant. Howard R. Relin, Monroe County District Attorney, Robert Alan Mastrocola of counsel, Monroe County District Attorney's Office, Rochester, for plaintiff-respondent.

 By withdrawing his motion for a new trial on the ground that he was denied the right to a fair and impartial jury, defendant failed to preserve that contention for our review (see, CPL 470.05[2] ).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

 We reject the further contention of defendant that his request for new counsel was improperly denied.   Defendant made an oral application for new counsel during his motion for severance approximately six weeks prior to trial, and he did not reduce his request to writing although directed to do so by Supreme Court.   Defendant again made an oral application on the first day of the trial.   The court properly determined that defendant failed to establish good cause for substitution of counsel (see, People v. Medina, 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768;  People v. Gayle, 167 A.D.2d 927, 562 N.Y.S.2d 288, lv. denied 77 N.Y.2d 838, 567 N.Y.S.2d 207, 568 N.E.2d 656).

 Defendant contends that he was denied effective assistance of counsel because he was not adequately informed of the progress of his case and defense counsel failed to preserve issues for appellate review.   He also contends that counsel should have requested a jury charge on intoxication and on lesser included offenses.   Upon our review of the record, we conclude that counsel made the appropriate motions, adequately cross-examined witnesses and presented a viable defense (see, People v. Walker, 259 A.D.2d 1026, 688 N.Y.S.2d 326 [decided herewith] ).   The evidence, the law and the circumstances of this case, viewed in totality as of the time of the representation, establish that defendant received meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Finally, defendant failed to allege any facts to support his contention that he was prejudiced by the dual jury trial with the codefendant.

Judgment unanimously affirmed.

MEMORANDUM DECISION.