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

1242
KA 13-00408
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALLEN J. BURNS, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered October 30, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree (three counts), assault in the second degree (four
counts), criminal obstruction of breathing or blood circulation (four
counts), criminal mischief in the fourth degree (three counts), and
harassment in the second degree (three 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 criminal
possession of a weapon in the third degree (Penal Law § 265.02 [1])
and four counts of assault in the second degree (§ 120.05 [2]).
Defendant contends that he was denied a fair trial by prosecutorial
misconduct on summation. We note that defendant failed to object to
many of the alleged instances of misconduct, and thus his challenges
to those remarks are unpreserved for our review (see CPL 470.05 [2];
People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). We decline
to exercise our power to review those alleged instances of misconduct
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). With respect to the alleged instances of misconduct that
are preserved for our review, we conclude that any improper remarks
were “ ‘not so pervasive or egregious as to deprive defendant of a
fair trial’ ” (People v Johnson, 303 AD2d 967, 968, lv denied 100 NY2d
583).

     Defendant next contends that County Court erred in refusing to
admit testimony regarding the victim’s psychiatric history. We reject
that contention. Two of the questions posed by defense counsel would
have elicited inadmissible hearsay (see People v Romero, 78 NY2d 355,
361), and the third question was an improper attempt to impeach the
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                                                         KA 13-00408

victim’s credibility by seeking contradictory testimony from another
witness on a collateral matter (see People v Pavao, 59 NY2d 282, 288-
289).

     Defendant contends that the evidence is legally insufficient with
respect to two counts each of criminal possession of a weapon in the
third degree and assault in the second degree because the People
failed to establish that the alleged weapons constituted “dangerous
instruments.” A dangerous instrument is “any instrument, article or
substance . . . which, under the circumstances in which it is used,
attempted to be used or threatened to be used, is readily capable of
causing death or other serious physical injury” (Penal Law § 10.00
[13]). Serious physical injury is defined as “physical injury which
creates a substantial risk of death, or which causes death or serious
and protracted disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily organ” (§
10.00 [10]). Here, the evidence is legally sufficient to establish
that the door was a dangerous instrument when defendant rammed it into
the victim’s leg (see People v Coleman, 82 AD3d 1593, 1594, lv denied
17 NY3d 793; see also People v Smith, 27 AD3d 894, 895-897, lv denied
6 NY3d 898). The evidence is also legally sufficient to establish
that the knife was a dangerous instrument when defendant struck the
victim’s head with the handle of the knife (see People v Wooden, 275
AD2d 935, 935, lv denied 96 NY2d 740). 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 reject defendant’s further contention
that the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
the first two counts of the indictment were defective because they
were unreasonably vague (see People v Erle, 83 AD3d 1442, 1443, lv
denied 17 NY3d 794), 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]). Contrary to defendant’s contention, he was
not denied effective assistance of counsel by defense counsel’s
failure to request a Huntley hearing. It is well settled that
“[t]here can be no denial of effective assistance of trial counsel
arising from counsel’s failure to ‘make a motion or argument that has
little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152)
and, here, defendant failed to show that a Huntley hearing would have
resulted in the suppression of defendant’s videotaped confession (see
People v Snyder, 100 AD3d 1367, 1369-1370, lv denied 21 NY3d 1010).

     Inasmuch as defendant failed to show good cause for substituting
his second assigned attorney with a new attorney (see People v
Linares, 2 NY3d 507, 510), the court did not err in denying
defendant’s application seeking new counsel. The court also properly
denied defendant’s request to proceed pro se because defendant’s
request was equivocal (see generally People v Gillian, 8 NY3d 85, 88;
People v Alexander, 109 AD3d 1083, 1084). “By failing to move to
dismiss the indictment within the five-day statutory period on the
ground that he was denied his right to testify before the grand jury .
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                                                         KA 13-00408

. . , defendant thus waived his right to testify before the grand jury
and his contention that the indictment should have been dismissed
based on the denial of his right to testify before the grand jury
lacks merit” (People v Armstrong, 94 AD3d 1552, 1552-1553, lv denied
19 NY3d 957; see People v Hardy, 49 AD3d 1232, 1232-1233, affd 13 NY3d
805; People v Kyle, 56 AD3d 1203, 1203, lv denied 12 NY3d 785).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
