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

391
KA 07-02491
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TUREMAIL MCCULLOUGH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TUREMAIL MCCULLOUGH, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered October 29, 2007. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree, assault in the second degree and grand larceny in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Monroe County, in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him upon a
jury verdict of robbery in the first degree (Penal Law § 160.15 [4]),
assault in the second degree (§ 120.05 [6]) and grand larceny in the
third degree (§ 155.35). Defendant contends in his main brief that
Supreme Court erred in admitting in evidence the testimony of a police
investigator that improperly bolstered the identification testimony of
an eyewitness. That contention is not preserved for our review (see
People v Newman, 71 AD3d 1509, lv denied 15 NY3d 754; People v Cala,
50 AD3d 1581, lv denied 10 NY3d 957; People v Slaughter, 27 AD3d 1188,
lv denied 7 NY3d 795), and we decline to exercise our power to review
it as a matter of discretion in the interest of justice (see CPL
470.15 [6] [a]).

     By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve for our review
his contention in his pro se supplemental brief that the assault
conviction is not supported by legally sufficient evidence (see People
v Lane, 7 NY3d 888, 889; People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, that contention is without merit (see
generally People v Chiddick, 8 NY3d 445, 446-447; People v Bleakley,
                                 -2-                           391
                                                         KA 07-02491

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 not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Defendant’s
challenge to the legal sufficiency of the evidence before the grand
jury, i.e., that the testimony of an eyewitness was improperly
bolstered, is not properly before us on this “appeal from an ensuing
judgment of conviction based upon legally sufficient trial evidence”
(CPL 210.30 [6]; see People v Afrika, 79 AD3d 1678, 1679; People v
Lee, 56 AD3d 1250, 1251, lv denied 12 NY3d 818).

     We agree with defendant, however, that the court erred in failing
to conduct a sufficient inquiry into his complaint regarding a
conflict of interest with defense counsel. On the day of sentencing,
defendant requested new counsel and indicated that he had filed a
grievance regarding defense counsel’s actions, including his alleged
failure to investigate certain allegations and to respond
appropriately to defendant’s requests. At that time, defense counsel
asked the court to assign new counsel to investigate defendant’s
claims. The court, however, did not address defendant’s request for
new counsel, nor did it conduct any inquiry concerning his
allegations. It is well settled that “it is incumbent upon a
defendant to make specific factual allegations of ‘serious complaints
about counsel’ . . . If such a showing is made, the court must make at
least a ‘minimal inquiry,’ and discern meritorious complaints from
disingenuous applications by inquiring as to ‘the nature of the
disagreement or its potential for resolution’ ” (People v Porto, 16
NY3d 93, 100). Here, the court proceeded to sentence defendant
without seeking input from defense counsel regarding whether the
grievance created an adversarial situation and without inquiring with
respect to the other issues raised. The court also sentenced
defendant without directing defense counsel to continue his
representation of defendant. Furthermore, although there is no rule
requiring that a defendant who has filed a grievance against his
attorney be assigned new counsel, the court was required to make an
inquiry to determine whether defense counsel could continue to
represent defendant in light of the grievance (see People v Smith, 25
AD3d 573, 574-576, lv denied 6 NY3d 853). We therefore modify the
judgment by vacating the sentence, and we remit the matter to Supreme
Court for the assignment of new counsel and resentencing.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
