Opinion
2012-07-6
The PEOPLE of the State of New York, Respondent, v. Miguel A. JARAMILLO, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Miguel A. Jaramillo, Defendant–Appellant Pro Se.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Miguel A. Jaramillo, Defendant–Appellant Pro Se.
Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1] ), criminal possession of a weapon in the fourth degree (§ 265.01[2] ) and perjury in the first degree (§ 210.15). By making only a general motion for a trial order of dismissal, defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish the element of serious physical injury with respect to the assault count ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Contrary to defendant's further contention, viewing the evidence in light of that element of assault as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence with respect to that element ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We conclude that the jury properly weighed the evidence in determining that defendant inflicted serious physical injury when he stabbed the victim, thereby lacerating muscle tissue, puncturing the victim's liver, and causing permanent scarring ( see People v. Barnett, 16 A.D.3d 1128, 1129, 790 N.Y.S.2d 799,lv. denied4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973).
County Court properly exercised its discretion in denying defendant's request for assignment of new counsel ( see generally People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283). “[D]efendant's disagreements with counsel over trial strategy did not establish the requisite good cause for substitution of counsel” ( People v. Saladeen, 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250,lv. denied4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143), nor was substitution of counsel warranted based on defendant's apparent attempt to create a conflict of interest by commencing an action in federal court against the Public Defender ( see People v. Walton, 14 A.D.3d 419, 420, 788 N.Y.S.2d 107,lv. denied5 N.Y.3d 796, 801 N.Y.S.2d 816, 835 N.E.2d 676;People v. Davis, 226 A.D.2d 125, 126, 640 N.Y.S.2d 53,lv. denied88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246).
The record of the suppression hearing supports the determination of the court that the police obtained defendant's consent to enter his residence ( see People v. Nielsen, 89 A.D.3d 1041, 1042, 933 N.Y.S.2d 381,lv. denied18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007), and properly seized a shotgun that was in plain view in his living room ( see People v. Brown, 96 N.Y.2d 80, 88–89, 725 N.Y.S.2d 601, 749 N.E.2d 170). We agree with defendant, however, that the record does not support the court's determination that the People met their burden of establishing that defendant consented to the seizure of a bulletproof vest from his residence ( see People v. McFarlane, 93 A.D.3d 467, 467–468, 939 N.Y.S.2d 460). Nevertheless, we conclude that the court's error in refusingto suppress the vest on that ground is harmless beyond a reasonable doubt ( see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
We reject defendant's contention that the court violated his right to a public trial by conducting certain proceedings in chambers. The record establishes that the proceedings at issue were distinct from trial proceedings that must be conducted in public ( see People v. Olivero, 289 A.D.2d 1082, 1082, 735 N.Y.S.2d 327,lv. denied98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841). Defendant failed to preserve for our review his further contentions that the prosecutor improperly shifted the burden of proof during summation ( see People v. Glenn, 72 A.D.3d 1567, 1568, 901 N.Y.S.2d 771,lv. denied15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899), and that the court improperly relied on the presentence report in determining the amount of restitution ( see People v. Roots, 48 A.D.3d 1031, 1032, 850 N.Y.S.2d 767). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Further, absent any indication that the court relied upon allegedly erroneous information in the presentence report in imposing the sentence, we decline to disturb the sentence based upon the court's failure to redact that information ( see People v. Molyneaux, 49 A.D.3d 1220, 1222, 853 N.Y.S.2d 774,lv. denied10 N.Y.3d 937, 862 N.Y.S.2d 344, 892 N.E.2d 410). The sentence is not unduly harsh or severe. We have considered the contentions raised by defendant in his pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.