PEOPLE v. JEAN BAPTISTE

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

The PEOPLE, etc., respondent, v. Pochly JEAN-BAPTISTE, appellant.

Decided: May 27, 2008

ROBERT A. SPOLZINO, J.P., EDWARD D. CARNI, THOMAS A. DICKERSON, and RANDALL T. ENG, JJ. Diane E. Selker, Peekskill, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos, Elana L. Yeger, and Tina L. Guccione of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 13, 2005, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contentions, he was not deprived of his right to counsel of his choice or of his right to be present at all material stages of his trial by the trial court's decision to disqualify defense counsel, which allegedly was made outside of his presence.   A defendant's right to counsel of his choice is not absolute and may properly be circumscribed where, as here, defense counsel's continued representation of the defendant would present a clear conflict of interest (see People v. Jones, 2 A.D.3d 1397, 768 N.Y.S.2d 881;  People v. Gordon, 272 A.D.2d 133, 134, 709 N.Y.S.2d 503;  People v. King, 248 A.D.2d 639, 640, 670 N.Y.S.2d 525;   People v. Liuzzo, 167 A.D.2d 963, 562 N.Y.S.2d 303;  see generally Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140).   Furthermore, since defense counsel could not have continued to represent the defendant under the circumstances of this case, the defendant's presence during any proceeding regarding disqualification of defense counsel “ could not have afforded [the defendant] any meaningful opportunity to affect the outcome” of the proceeding (see People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050).   Thus, the defendant's presence was not required.

 There is no merit to the defendant's contention that the trial court erred in permitting the prosecution to elicit hearsay testimony from several of their witnesses relating to the defendant's motive.   This testimony was admissible under the “state-of-mind” exception to the hearsay rule (see People v. Casper, 42 A.D.3d 887, 839 N.Y.S.2d 397;  People v. Rose, 41 A.D.3d 742, 840 N.Y.S.2d 363;  People v. Carrasquillo, 10 A.D.3d 424, 425, 780 N.Y.S.2d 781;  People v. Sawyer, 288 A.D.2d 73, 733 N.Y.S.2d 28). The defendant's contentions regarding other alleged trial errors are also without merit.

 Further, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).

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