PEOPLE v. THAGARD

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Oscar THAGARD, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, SMITH, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Susan C. Ministero of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10[2][a] ).   Defendant failed to preserve for our review his contentions that County Court erred in admitting videotape footage from a grocery store security camera without conducting a hearing with respect to its admissibility;  erred in admitting a police officer's testimony summarizing events depicted on missing footage from another security camera;  erred in admitting evidence of prior uncharged crimes allegedly committed by defendant;  and erred in failing to instruct the jury on the limited probative value of evidence of flight (see generally CPL 470.05[2] ).   In any event, we have reviewed those contentions and conclude that they lack merit.

 Contrary to the additional contention of defendant, the court's failure to address his request for substitution of counsel does not require reversal.   Defendant's conclusory assertions in support of that request did not “suggest a serious possibility of good cause for substitution” (People v. Frayer, 215 A.D.2d 862, 863, 627 N.Y.S.2d 107, lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606;  see People v. Benson, 265 A.D.2d 814, 697 N.Y.S.2d 222, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097, cert. denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499;  People v. Gaines, 212 A.D.2d 727, 622 N.Y.S.2d 970, lv. denied 85 N.Y.2d 938, 627 N.Y.S.2d 1000, 651 N.E.2d 925).

 During jury selection, the court asked a prospective juror who had been the victim of a burglary in another state whether defendant had committed that burglary and whether the juror would hold that prior burglary against defendant.   The prospective juror answered “no” to both questions.   We conclude that defendant was not thereby denied a fair trial.   The court instructed the jury that defendant was presumed to be innocent, and the jury is presumed to have followed that instruction (see generally People v. Moore, 71 N.Y.2d 684, 688, 529 N.Y.S.2d 739, 525 N.E.2d 460).

Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: