PEOPLE v. ZARRO

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

The PEOPLE, etc., respondent, v. Francis A. ZARRO, Jr., appellant.

Decided: October 27, 2009

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, DANIEL D. ANGIOLILLO, and JOHN M. LEVENTHAL, JJ. Carol Kahn, New York, N.Y., for appellant, and appellant pro se. Andrew M. Cuomo, Attorney General, New York, N.Y. (Roseann B. MacKechnie and Jodi A. Danzig of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Rooney, J.), rendered November 18, 2004, convicting him of scheme to defraud in the first degree, grand larceny in the first degree, grand larceny in the second degree (five counts), criminal possession of stolen property in the second degree (four counts), and grand larceny in the third degree (two counts), after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 “The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at the defendant's option” (People v. McClam, 60 A.D.3d 968, 969, 875 N.Y.S.2d 568;  cf. People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609).   Rather, “before substitution of counsel is granted, good cause, such as a conflict of interest or irreconcilable differences, must be demonstrated” (People v. Martin, 41 A.D.3d 616, 616, 838 N.Y.S.2d 166).  “Good cause determinations are necessarily case-specific and, therefore, fall within the discretion of the trial court” (People v. McClam, 60 A.D.3d at 970, 875 N.Y.S.2d 568).   Here, the court did not improvidently exercise its discretion in refusing, on the eve of trial, to grant substitution of the defendant's counsel.   The record makes clear that the request, made on the day opening statements were scheduled to be delivered, was engineered by the defendant merely as a dilatory tactic (see People v. Arroyave, 49 N.Y.2d 264, 271-272, 425 N.Y.S.2d 282, 401 N.E.2d 393;  People v. Stevenson, 36 A.D.3d 634, 831 N.Y.S.2d 74;  People v. Gloster, 175 A.D.2d 258, 259, 572 N.Y.S.2d 370).

 Contrary to the defendant's contention, he validly waived his right to a jury trial (see N.Y. Const. Art. 1, § 2).   The court ensured that the defendant understood the rights he was giving up, and the defendant signed the waiver in open court after having those rights explained to him (see People v. Buckley, 299 A.D.2d 417, 418, 750 N.Y.S.2d 617;  People v. Longchamp, 147 A.D.2d 659, 538 N.Y.S.2d 60).   Nothing in the proceedings vitiated the validity of the waiver.

 The defendant claims that the evidence was legally insufficient to establish his guilt of scheme to defraud in the first degree.   To the extent that the claim is preserved for appellate review, it is without merit.   Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of scheme to defraud in the first degree (see Penal Law § 190.65[1] ) beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see 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;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, 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).

Contrary to the defendant's contention, the prosecution established by a preponderance of the evidence that venue was proper in Dutchess County (see People v. Greenberg, 89 N.Y.2d 553, 555-556, 656 N.Y.S.2d 192, 678 N.E.2d 878).

 The defendant's contention that the Attorney General had a conflict of interest is dehors the record, and the defendant's contention that he was deprived of his right to the effective assistance of counsel also rests largely on matter dehors the record. To the extent that those claims are dehors the record, they may not be reviewed on direct appeal (see People v. Fleming, 65 A.D.3d 702, 884 N.Y.S.2d 477).   To the extent the record permits review of the defendant's claim that counsel was ineffective, we find that the defendant received effective representation (see People v. Jorge, 61 A.D.3d 996, 996-997, 876 N.Y.S.2d 894).

The defendant's claim regarding the Attorney General's authority to prosecute him is without merit (see Executive Law § 63[3];  Matter of Mann Judd Landau v. Hynes, 49 N.Y.2d 128, 138, 424 N.Y.S.2d 380, 400 N.E.2d 321), as are the defendant's claims regarding the indictment (see People v. First Meridian Planning Corp., 86 N.Y.2d 608, 616, 635 N.Y.S.2d 144, 658 N.E.2d 1017;  People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827;  People v. Rosich, 170 A.D.2d 703, 567 N.Y.S.2d 749;  cf. People v. Sanchez, 84 N.Y.2d 440, 618 N.Y.S.2d 887, 643 N.E.2d 509), the search warrant (People v. Fernandez, 61 A.D.3d 891, 878 N.Y.S.2d 92), the grand jury proceedings (see People v. Hernandez, 27 A.D.3d 229, 810 N.Y.S.2d 185), and the court's deliberation and the form of its verdict (see CPL 320.20).

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

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