PEOPLE v. SWANSON

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

The PEOPLE of the State of New York, Respondent, v. Jody SWANSON, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Frank H. HiscockLegal Aid Society, Syracuse, Hancock & Estabrook, LLP (Stewart F. Hancock, Jr., of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal trespass in the second degree (Penal Law § 140.15) and unlawful imprisonment in the second degree (§ 135.05).   Defendant failed to preserve for our review his contention concerning the alleged repugnancy of the verdict based on his acquittal of burglary inasmuch as he failed to raise that contention before County Court discharged the jury (see People v. Carter, 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464, affd. 7 N.Y.3d 875, 826 N.Y.S.2d 588, 860 N.E.2d 50;  People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280).   Defendant also failed to preserve for our review his contention that the criminal trespass conviction is not supported by legally sufficient evidence based on the People's failure to establish that he unlawfully entered or remained in the building.   Defendant's motion for a trial order of dismissal was not “ ‘specifically directed’ at” that alleged deficiency in the evidence (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Insofar as defendant preserved for our review his contentions that other parts of the conviction are not supported by legally sufficient evidence, we conclude that those contentions are lacking in merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally id.).

 We reject the further contention of defendant that the court violated his right to counsel of his choosing by disqualifying his original trial attorney.  “A lawyer is ethically required to withdraw from acting as an advocate if it is obvious that he or she ‘may be called as a witness on a significant issue other than on behalf of the client ․ [and] it is apparent that the testimony is or may be prejudicial to the client’ ․ An attorney also should not continue to serve as an advocate when it is obvious that the lawyer will be called as a witness on behalf of the client” (People v. Berroa, 99 N.Y.2d 134, 139-40, 753 N.Y.S.2d 12, 782 N.E.2d 1148).   The advocate-witness rule “generally requires the lawyer to withdraw from employment when it appears that he [or she] ․ will be called to testify regarding a disputed issue of fact” (People v. Paperno, 54 N.Y.2d 294, 299-300, 445 N.Y.S.2d 119, 429 N.E.2d 797).   Here, the record establishes that there was a significant possibility that defendant's original trial attorney would be called to testify with respect to a disputed issue of fact and, thus, “[u]nder these circumstances, we conclude that the ․ court did not err or improvidently exercise its discretion in [sua sponte] disqualifying” him from continuing as defendant's trial attorney (People v. Amato, 173 A.D.2d 714, 716, 570 N.Y.S.2d 817, lv. denied 78 N.Y.2d 919, 573 N.Y.S.2d 472, 577 N.E.2d 1064, 78 N.Y.2d 961, 574 N.Y.S.2d 940, 580 N.E.2d 412, cert. denied 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 107;  see People v. Limongelli, 156 A.D.2d 473, 474-475, 548 N.Y.S.2d 759, lv. denied 76 N.Y.2d 894, 561 N.Y.S.2d 557, 562 N.E.2d 882).   Contrary to defendant's further contention, there is no requirement that the court be certain that the attorney will testify at trial before disqualifying him or her (see generally Amato, 173 A.D.2d at 716, 570 N.Y.S.2d 817).

We have considered defendant's remaining contentions and conclude that they either are without merit or are moot in light of our determination.

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

MEMORANDUM: