        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

233
KA 11-01121
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANIEL BRADFORD, JR., DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered April 7, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal contempt in the first degree (two counts), aggravated
criminal contempt, offering a false instrument for filing in the first
degree and tampering with physical evidence.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the facts and the law by reversing that part
convicting defendant of tampering with physical evidence and
dismissing count six of the indictment, and by vacating the sentences
imposed on the remaining counts, and as modified the judgment is
affirmed and the matter is remitted to Steuben County Court for
resentencing on those counts.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, murder in the second degree (Penal
Law § 125.25 [1]), aggravated criminal contempt (§ 215.52 [1]), and
tampering with physical evidence (§ 215.40 [2]). Defendant failed to
preserve for our review his contention regarding the selection of
juror number one inasmuch as he did not exercise a challenge for cause
or a peremptory challenge against her (see People v Forino, 65 AD3d
1259, 1260, lv denied 13 NY3d 907; People v Berry, 43 AD3d 1365, 1366,
lv denied 9 NY3d 1031; People v Howington, 284 AD2d 1009, 1009-1010,
lv denied 97 NY2d 683). Even assuming, arguendo, that defendant had
challenged the prospective juror and his challenge had merit, we note
that defendant’s contention would not require reversal because he
failed to exhaust his peremptory challenges prior to the completion of
jury selection (see CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 248;
People v Arguinzoni, 48 AD3d 1239, 1241, lv denied 10 NY3d 859).
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                                                         KA 11-01121

     We reject defendant’s contention that County Court erred in
denying his requests for substitution of assigned counsel. A trial
court must carefully evaluate serious complaints about counsel, and
“should substitute counsel when a defendant can demonstrate ‘good
cause’ ” for removal of his current attorney (People v Linares, 2 NY3d
507, 510). Here, the court carefully evaluated defendant’s first
request, made after the first witness testified, and properly
concluded that defense counsel was “reasonably likely to afford . . .
defendant effective assistance” of counsel (People v Medina, 44 NY2d
199, 208; see generally People v Smith, 18 NY3d 588, 592-593). The
court also properly denied defendant’s second request for assignment
of new counsel later in the trial, which was based on defendant’s
unsubstantiated allegation of a conspiracy between defense counsel,
the court, the prosecutor and law enforcement agencies, as well as
defense counsel’s alleged failure to file appropriate motions and
cross-examine certain witnesses in accordance with defendant’s wishes,
and the frequent arguments between defendant and defense counsel. “At
most, defendant’s allegations evinced disagreements with counsel over
strategy . . . , which were not sufficient grounds for substitution”
(People v Agard, 107 AD3d 613, 613, lv denied 21 NY3d 1039; see
Linares, 2 NY3d at 511; Medina, 44 NY2d at 209).

     Defendant further contends that he was denied effective
assistance of counsel based on various errors made by defense counsel.
With respect to defendant’s contention that defense counsel failed to
move to suppress certain items seized from the former marital
residence, we note that defendant was barred from the premises by an
order of protection “and thus had neither a legitimate expectation of
privacy therein nor standing to challenge the police entry into the
house” (People v Robinson, 205 AD2d 836, 837, lv denied 84 NY2d 831).
“Given that the governing law was unfavorable, we cannot say on this
record that the failure to make [that suppression motion] rendered
counsel’s otherwise competent performance constitutionally deficient”
(People v Brunner, 16 NY3d 820, 821). Defendant’s remaining “alleged
instances of ineffective assistance concerning defense counsel’s
failure to make various objections [or certain motions or requests]
‘are based largely on [defendant’s] hindsight disagreements with
defense counsel’s trial strategies, and defendant failed to meet his
burden of establishing the absence of any legitimate explanations for
those strategies’ ” (People v Douglas, 60 AD3d 1377, 1377, lv denied
12 NY3d 914; see People v Lane, 106 AD3d 1478, 1480, lv denied 21 NY3d
1043; People v Stepney, 93 AD3d 1297, 1298, lv denied 19 NY3d 968).
Viewing the evidence, the law, and the circumstances of this case in
totality and at the time of representation, we conclude that defendant
received effective assistance of counsel (see generally People v
Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the court properly
granted the prosecutor’s Ventimiglia/Molineux application, thereby
permitting the People to introduce evidence that defendant had
previously threatened to kill the victim, that the victim planned to
enforce the order of protection that had been issued against
defendant, and that defendant had engaged in assaultive conduct toward
the victim in the past. The evidence was admissible because it tended
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                                                         KA 11-01121

to prove defendant’s intent and the absence of mistake or accident,
and its probative value outweighed its potential for prejudice (see
People v Alvino, 71 NY2d 233, 242; People v Siplin, 66 AD3d 1416,
1417, lv denied 13 NY3d 942; People v Gonzalez, 62 AD3d 1263, 1265, lv
denied 12 NY3d 925). The evidence also established the victim’s state
of mind (see People v Gorham, 17 AD3d 858, 860-861; People v McClain,
250 AD2d 871, 872, lv denied 92 NY2d 901; see generally People v Cook,
93 NY2d 840, 841), which tended to disprove the defense advanced at
trial that the victim was accidentally injured while riding an ATV
with defendant.

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence because
he failed to renew his motion for a trial order of dismissal after
presenting evidence (see People v Lane, 7 NY3d 888, 889; People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,
viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is against the weight of the evidence only
with respect to the crime of tampering with physical evidence (see
generally Bleakley, 69 NY2d at 495). We therefore modify the judgment
accordingly. The record establishes that, after the other crimes in
the indictment had been committed, defendant may have cleaned part of
the scene of the crime. Inasmuch as that is the only evidence that
relates to the tampering charge, we conclude that it was unreasonable
for the jury to conclude, as was charged in the indictment, that the
People established beyond a reasonable doubt that defendant,
“believing that certain physical evidence was to be produced or used
in a prospective official proceeding and intending to prevent such
production or use, . . . suppressed [that property] by an act of
concealment, alteration or destruction” (cf. People v Porpiglia, 215
AD2d 784, 784-785, lv denied 86 NY2d 800).

     Defendant failed to preserve for our review his contention that
remarks made by the prosecutor during summation constituted
prosecutorial misconduct that deprived him of a fair trial (see People
v Stanley, 108 AD3d 1129, 1131, lv denied 22 NY3d 959), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     The sentence is not unduly harsh or severe. We note, however,
that a discrepancy between the sentencing minutes and the certificate
of conviction requires vacatur of the sentences imposed on the
remaining counts. Although the sentencing minutes indicate that the
sentence imposed on count two is to run consecutively to the sentences
imposed on counts three through five, the minutes are silent with
respect to whether the sentence imposed on count two is to run
consecutively or concurrently to the sentence imposed on count one.
                                 -4-                           233
                                                         KA 11-01121

Thus, by operation of law, those sentences shall run concurrently (see
Penal Law § 70.25 [1] [a]). The certificate of conviction, however,
indicates that the sentences imposed on counts one and two are to run
consecutively. Inasmuch as the record leaves open the possibility
that the court’s failure to specify at sentencing that those sentences
are to run consecutively was accidental (cf. People v Vasquez, 88 NY2d
561, 580-581), we further modify the judgment by vacating the
sentences imposed on the remaining counts, and we remit the matter to
County Court for resentencing on those counts (see People v Jacobson,
60 AD3d 1326, 1329, lv denied 12 NY3d 916; People v Sinkler, 288 AD2d
844, 845, lv denied 97 NY2d 761).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
