S. Dean, Center for Appellate Litigation, New York (Benjamin
Wiener of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Alan Gadlin of
counsel), for respondent.
Friedman, J.P., Renwick, Tom, Kahn, Kern, JJ.
Supreme Court, New York County (Ronald A. Zweibel, J. at
motions; Arlene D. Goldberg, J. at jury trial and
sentencing), rendered December 21, 2015, as amended January
5, 2016, convicting defendant of 18 counts of criminal
possession of stolen property in the fourth degree and 17
counts of grand larceny in the fourth degree, and sentencing
him, as a second felony offender, to an aggregate term of 16
to 32 years, unanimously affirmed.
court providently exercised its discretion in denying defense
counsel's midtrial request for a CPL article 730
competency examination (see Pate v Robinson, 383
U.S. 375 ; People v Tortorici, 92 N.Y.2d 757,
766 , cert denied 528 U.S. 834');">528 U.S. 834 ;
People v Morgan, 87 N.Y.2d 878, 881 ). The
issue of competency arose for the first time in the midst of
trial, when defense counsel relayed to the court his
conversation with a friend of defendant who had expressed
concerns about defendant's mental health and had
recounted some bizarre statements defendant had allegedly
made. However, defendant's understanding of the charges
and ability to assist in his defense was evident throughout
all pretrial and trial proceedings, as well for the remainder
of the trial (see People v Russell, 74 N.Y.2d 901');">74 N.Y.2d 901
). Moreover, the timing of the phone call and the
surrounding circumstances suggest that, despite his
disclaimers, defendant arranged for the phone call and
fabricated the delusions relayed by the caller, in an effort
to disrupt the trial.
motion court correctly denied, as untimely, defendant's
motion to suppress, under Payton v New York (445
U.S. 573 ), the fruits of his allegedly unlawful
warrantless arrest at the men's shelter where he had been
residing. The 45-day period in which to make such a motion
(CPL 255.20, 710.40) had elapsed and successor defense
counsel failed to demonstrate good cause for the delay. The
original defense counsel had ample opportunity, and all the
necessary information, to make a timely motion, and
defendant's arguments to the contrary are unavailing. The
fact that the motion court also opined that the motion lacked
merit does not require us to reach the merits; the issue is
timeliness of a motion rather than preservation of an issue,
and thus the portion of CPL 470.05(2) referring to issues
actually decided is inapplicable.
event, we conclude that the motion would have been
unsuccessful, even if timely made. The record shows that
employees of the shelter lawfully permitted the police to
enter (see People v Nalbandian, 188 A.D.2d 328');">188 A.D.2d 328 [1st
Dept 1992], lv denied 81 N.Y.2d 890');">81 N.Y.2d 890 ).
Furthermore, defendant's original counsel did not render
ineffective assistance under the state and federal standards
(see People v Benevento, 91 N.Y.2d 708, 713-714
; Strickland v Washington, 466 U.S. 668');">466 U.S. 668
) by failing to make a timely motion. Given the
prevailing law, it was objectively reasonable for the
original counsel to forgo this motion, and, as indicated, the
motion would not have succeeded. Moreover, since the fruits
of the alleged Payton violation were tangential to
defendant's guilt, defendant has not demonstrated that
even a successful suppression motion would have affected the
outcome of the trial.
the motion court dismissed a count of criminal possession of
stolen property on the ground that legally insufficient
evidence had been presented to the grand jury, it granted the
People leave to re-present that count, and the People
lawfully did so. The record fails to support defendant's
assertion that the court actually authorized a
re-presentation of a different charge.
considered and rejected defendant's arguments for
dismissal of the counts relating to a nontestifying victim.
In this case involving stolen credit and debit cards, one of
the eight victims did not testify. As a result, there was no
direct evidence of the circumstances under which her property
was taken. However, upon our review of the extensive
circumstantial evidence, we conclude that, as to each element
of the charges at issue, the verdict was based on legally
sufficient evidence and was not against the weight of the
evidence (see People v Porter, 119 A.D.3d 438, 439
[1st Dept 2014], lv denied 24 N.Y.3d 1046');">24 N.Y.3d 1046 ;
People v Meador, 279 A.D.2d 327');">279 A.D.2d 327 [1st Dept 2001],
lv denied 96 N.Y.2d 865');">96 N.Y.2d 865 ), and that the
larceny charge satisfied the requirements of geographical
jurisdiction as set forth in CPL 20.20 and 20.40.
perceive no basis for reducing the sentence, which we note is
deemed by operation of law to ...