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

The PEOPLE, etc., respondent, v. Mark POLITE, also known as Mark Bogle, appellant.


Decided: September 19, 2018

WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ. The Legal Aid Society, New York, N.Y. (Heidi Bota of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.


Appeal by the defendant from a resentence of the Supreme Court, Kings County (Thomas J. Carroll, J.), imposed November 2, 2011, upon the granting of his motion pursuant to CPL 440.20 to set aside a sentence of the same court imposed October 18, 1999, upon his conviction of attempted murder in the second degree, upon a jury verdict.

ORDERED that the resentence is affirmed.

In 1999, the defendant was convicted, after a jury trial, of attempted murder in the second degree for shooting Tyrone Bowman three times.  The defendant was sentenced as a persistent felony offender, based upon three prior felony convictions, to an indeterminate term of imprisonment of 20 years to life.  This Court previously affirmed the judgment on direct appeal (see People v. Polite, 291 A.D.2d 511, 738 N.Y.S.2d 235).

In December 2010, the defendant successfully moved pursuant to CPL 440.20 to set aside the sentence as illegal on the ground that, in adjudicating the defendant a persistent felony offender, the Supreme Court had failed to comply with the statutorily mandated procedures by, among other things, failing to provide the defendant with a full and fair opportunity to controvert the constitutionality of the predicate felony convictions at a persistent felony hearing (see CPL 400.20).  Subsequently, a persistent felony offender hearing was held, after which the court found the defendant to be a persistent felony offender and, as such, resentenced him to an indeterminate term of imprisonment of 20 years to life.

Penal Law § 70.10(1)(a) defines a persistent felony offender as “a person, other than a persistent violent felony offender ․, who stands convicted of a felony after having previously been convicted of two or more felonies.”  The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender mandates a “two-pronged analysis” (People v. Smith, 232 A.D.2d 586, 586, 649 N.Y.S.2d 444 [internal quotation marks omitted];  see CPL 400.20[1];  People v. Gaines, 136 A.D.2d 731, 733, 524 N.Y.S.2d 70;  People v. Oliver, 96 A.D.2d 1104, 467 N.Y.S.2d 76, affd 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242).  “Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he previously has been convicted of at least two felonies, and secondly, the court must determine if it ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest’ ” (People v. Oliver, 96 A.D.2d at 1105, 467 N.Y.S.2d 76, quoting CPL 400.20[1][b];  see People v. Prindle, 29 N.Y.3d 463, 467, 58 N.Y.S.3d 280, 80 N.E.3d 1026;  People v. Smith, 232 A.D.2d at 586, 649 N.Y.S.2d 444).

The defendant challenges the constitutionality of the persistent felony offender statutory scheme, although he acknowledges that the Court of Appeals has repeatedly found it to be constitutional and repeatedly rejected his argument that it violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and his due process and Sixth Amendment rights (see People v. Prindle, 29 N.Y.3d at 465–466, 58 N.Y.S.3d 280, 80 N.E.3d 1026;  People v. Giles, 24 N.Y.3d 1066, 1071–1072, 2 N.Y.S.3d 30, 25 N.E.3d 943;  People v. Quinones, 12 N.Y.3d 116, 130, 879 N.Y.S.2d 1, 906 N.E.2d 1033;  People v. Rivera, 5 NY3d 61, 69, 800 N.Y.S.2d 51, 833 N.E.2d 194;  People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844).  In Prindle, the latest case to consider the issue, the Court “ ‘again [upheld] the constitutionality of New York's discretionary persistent felony offender sentencing scheme and further [held] that defendant's constitutional rights were not violated’ ” (29 N.Y.3d at 465–466, 58 N.Y.S.3d 280, 80 N.E.3d 1026, quoting People v. Quinones, 12 N.Y.3d at 119, 879 N.Y.S.2d 1, 906 N.E.2d 1033).

Although it is within the province of the Court of Appeals to reexamine its earlier precedent and determine whether a compelling justification exists to overrule that precedent (see People v. Peque, 22 N.Y.3d 168, 194, 980 N.Y.S.2d 280, 3 N.E.3d 617), that right of reexamination is not within our province.  Simply stated, this Court cannot discount or disregard the Court of Appeals' determination in Prindle and numerous other cases, and, if there is to be any shift in that precedent, the change in the law is for the Court of Appeals to pronounce (see Jiannaras v. Alfant, 124 A.D.3d 582, 586, 1 N.Y.S.3d 332, affd 27 N.Y.3d 349, 33 N.Y.S.3d 140, 52 N.E.3d 1166;  Ellis v. Gold, 204 A.D.2d 261, 266, 611 N.Y.S.2d 587).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in determining “that the history and character of [this] defendant and the nature and circumstances of [this defendant's] criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest” (Penal Law § 70.10[2] ).  The court's determination in that regard is supported by the record (see People v. Harris, 117 A.D.3d 847, 860, 985 N.Y.S.2d 643, affd 26 N.Y.3d 1, 18 N.Y.S.3d 583, 40 N.E.3d 560;  People v. Dixon, 107 A.D.3d 735, 736, 967 N.Y.S.2d 87;  People v. Maxwell, 22 A.D.3d 607, 802 N.Y.S.2d 505;  People v. Perry, 19 A.D.3d 619, 800 N.Y.S.2d 25).

The Supreme Court did not improvidently exercise its discretion in denying the defendant's application to relieve defense counsel and appoint a new attorney to represent him.  “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 defendant's option” (People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853;  People v. Cheeks, 107 A.D.3d 1013, 1014, 966 N.Y.S.2d 893).  However, courts must “carefully evaluate serious complaints about counsel,” and “should substitute counsel when a defendant can demonstrate good cause” (People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [internal quotation marks omitted];  see People v. Smith, 18 N.Y.3d 588, 592, 942 N.Y.S.2d 5, 965 N.E.2d 232;  People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768).  “Good cause determinations are necessarily case-specific and therefore fall within the discretion of the trial court” (People v. Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609).  In determining whether good cause exists, a trial court must consider “the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance” (id.).

Here, the Supreme Court's inquiry into the defendant's request for new counsel was “diligent and thorough” (id. at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609).  The court repeatedly allowed the defendant, and defense counsel, to explain the reasons for the defendant's loss of confidence in counsel, and reasonably concluded that there was no genuine conflict of interest.  That counsel disagreed with the defendant's strategy did not compel the court to delay the proceedings and assign new counsel (see id. at 512, 780 N.Y.S.2d 529, 813 N.E.2d 609).  Thus, the court did not improvidently exercise its discretion in concluding that the defendant failed to show good cause for the substitution of counsel in connection with his resentencing (see People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283;  People v. Linares, 2 N.Y.3d 507, 780 N.Y.S.2d 529, 813 N.E.2d 609;  People v. Medina, 44 N.Y.2d 199, 404 N.Y.S.2d 588, 375 N.E.2d 768).  Furthermore, the transcript of the resentencing proceeding establishes that counsel continued to provide meaningful assistance to the defendant (see People v. Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609;  People v. Medina, 44 N.Y.2d at 208, 404 N.Y.S.2d 588, 375 N.E.2d 768;  People v. Robinson, 130 A.D.3d 848, 12 N.Y.S.3d 569).

The defendant's claim, raised in his pro se supplemental brief, of unreasonable delay in resentencing pursuant to CPL 380.30(1) is unpreserved for appellate review, as it is raised for the first time on this appeal (see CPL 470.05[2];  People v. Smith, 64 A.D.3d 798, 882 N.Y.S.2d 653;  People v. Mitchell, 54 A.D.3d 779, 863 N.Y.S.2d 371).  “Considering that the [hearing] court is in a position to take proof and make factual calculations regarding sentencing delay, the issue is similar to speedy trial claims, which must be preserved at the trial level if they are to be recognized on appeal, be they based on constitutional grounds or on statutory grounds” (People v. Marshall, 228 A.D.2d 15, 18, 653 N.Y.S.2d 604 [citations omitted];  see People v. Butti, 250 A.D.2d 859, 672 N.Y.S.2d 794).  Inasmuch as this contention is unpreserved for appellate review, we decline to reach the contention in the exercise of our interest of justice jurisdiction (see People v. Butti, 250 A.D.2d at 859–860, 672 N.Y.S.2d 794;  People v. Marshall, 228 A.D.2d at 18, 653 N.Y.S.2d 604).

The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel because of various errors on the part of defense counsel is without merit.  “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;  see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915;  People v. Flowers, 121 A.D.3d 1014, 993 N.Y.S.2d 921, affd 28 N.Y.3d 536, 46 N.Y.S.3d 497, 68 N.E.3d 1228).  The defendant contends that counsel should have moved pursuant to CPL 380.30(1) to dismiss the indictment based on the 12–year delay between the original sentencing, on October 18, 1999, and the resentencing, on November 2, 2011.  He contends that the delay resulted in substantial prejudice by denying him the ability to present evidence of mitigation with respect to his character and history.  However, since the relevant time period was from the date of the order setting aside the original sentence to the start of his resentencing hearing, a period of only 51/212 months (see People v. Williams, 14 N.Y.3d 198, 213, 899 N.Y.S.2d 76, 925 N.E.2d 878;  People v. Peterson, 158 A.D.3d 448, 67 N.Y.S.3d 833;  People v. Florio, 125 A.D.3d 451, 999 N.Y.S.2d 741;  People v. Howard, 96 A.D.3d 1691, 1692, 947 N.Y.S.2d 314), there was no unreasonable delay, and no prejudice.  Nor was it ineffective of counsel not to object to the admission into evidence of the defendant's postconviction prison disciplinary record, since the evidence, even if hearsay, was admissible under CPL 400.20(5).  The Supreme Court was permitted to consider “any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people, including the defendant's institutional record of confinement” (People v. Myles, 90 A.D.3d 952, 953–954, 935 N.Y.S.2d 99 [citation and internal quotation marks omitted];  see People v. Adams, 155 A.D.3d 1058, 1059, 64 N.Y.S.3d 586;  People v. Parker, 107 A.D.3d 1017, 1019, 967 N.Y.S.2d 763).  The remaining purported omissions of counsel involve motions or objections that similarly would have had little or no chance of success (see People v. Stultz, 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).

Moreover, the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defense counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).