         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
149
KA 11-00484
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BOBBY JOHNSON, JR., DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered August 21, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree
(three counts), robbery in the first degree (nine counts), reckless
endangerment in the second degree, endangering the welfare of a child
and unlawful imprisonment in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, three counts of burglary in the
second degree (Penal Law § 140.25 [1] [a], [c], [d]), and nine counts
of robbery in the first degree (§ 160.15 [2], [3], [4]). Contrary to
defendant’s contention, County Court properly exercised its discretion
in denying his motion for new assigned counsel on the morning of the
commencement of trial inasmuch as defendant failed to establish good
cause for a substitution of counsel (see People v Linares, 2 NY3d 507,
511). The court conducted the requisite inquiry when defendant made
his oral request for substitution of counsel and concluded that
defendant’s objections were without merit (see People v Stilts, 86
AD3d 927, 928, lv denied 18 NY3d 886; see generally People v Sides, 75
NY2d 822, 825). Good cause does not exist where, as here, “on the eve
of trial, disagreements over trial strategy generate discord”
(Linares, 2 NY3d at 511).

     We reject defendant’s further contention that he received
ineffective assistance of counsel. Defendant failed to demonstrate
that defense counsel’s decision not to pursue the affirmative defense
of mental disease or defect pursuant to Penal Law § 40.15 was not the
result of a “ ‘well-advised defense strategy’ ” (People v Skinner, 224
AD2d 916, 916, quoting People v Ford, 46 NY2d 1021, 1023; see
generally People v Caban, 5 NY3d 143, 152). Viewing the evidence, the
                                 -2-                           149
                                                         KA 11-00484

law and the circumstances of this case, in totality and as of the time
of the representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

      Defendant’s contention that the court erred in bifurcating the
jury instructions over two days is not preserved for our review
because he failed to make a timely objection thereto (see People v
Miller, 59 AD3d 463, 464, lv denied 12 NY3d 856; People v Graham, 228
AD2d 299, 299, lv denied 88 NY2d 985; People v Williams, 206 AD2d 917,
917, lv denied 84 NY2d 911). We reject defendant’s contention that
the bifurcation of the jury instructions is a mode of proceedings
error that does not require preservation. Defendant’s reliance on
People v Fujah (182 AD2d 774, 775) is misplaced because in that case
there was a violation of CPL 260.30 when the jury instructions were
provided before the parties’ summations, whereas here there was no
such violation. We decline to exercise our power to review
defendant’s contention concerning the bifurcated jury instructions as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
