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

229
KA 11-01294
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHEN D. TAYLOR, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered May 19, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts) and criminal possession of a weapon in
the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of two counts of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [1]
[b]; [3]) and one count of criminal possession of a weapon in the
third degree (§ 265.02 [1]). In appeal No. 2, defendant appeals from
an order denying his motion pursuant to CPL 440.10 seeking to vacate
the judgment in appeal No. 1.

     Defendant failed to preserve for our review his contention in
appeal No. 1 that the evidence is legally insufficient to support his
conviction of criminal possession of a weapon in the second degree
under Penal Law § 265.03 (1) (b) because he failed to renew his motion
for a trial order of dismissal after presenting evidence in his
defense (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). In any event, we reject that contention. Viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we conclude that the evidence is legally sufficient to
support the conviction (see People v Bleakley, 69 NY2d 490, 495). An
eyewitness testified that defendant had a gun when he was at her
residence, where it was ultimately recovered by police, and the
recording of her 911 call, reporting that defendant was waving the gun
and threatening her nephew as the incident was happening, was admitted
in evidence. Furthermore, one of the police witnesses testified that
                                 -2-                           229
                                                         KA 11-01294

he saw defendant holding what appeared to be a gun before he entered
the residence. We further conclude that, viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). The jury
was free to credit the testimony of the People’s witnesses, rather
than defendant’s testimony, and we perceive no reason to reject those
credibility determinations (see generally id.).

     We reject defendant’s further contention in appeal No. 1 that
County Court erred in permitting the People to offer Molineux evidence
from a police witness that, approximately three months prior to this
incident, while conducting surveillance, he heard defendant say to
another individual “Don’t f*** with me; you know, I’ll use my pistol.”
We conclude that the evidence was relevant with respect to the element
of intent (see People v Alvino, 71 NY2d 233, 241-242), inasmuch as the
weapon that was recovered was a .32 caliber automatic “Pistole,” a
type of handgun. Further, the court properly weighed the probative
value of the evidence against the prejudicial impact by limiting the
testimony to that statement (see People v Rivers, 82 AD3d 1623, 1623,
lv denied 17 NY3d 904), and the court minimized the potential
prejudice by providing a curative instruction (see People v Holmes,
104 AD3d 1288, 1289, lv denied 22 NY3d 1041). In any event, any error
in permitting the testimony is harmless. The evidence of defendant’s
guilt is overwhelming, and there is no significant probability that
defendant would have been acquitted if that evidence had been excluded
(see People v Casado, 99 AD3d 1208, 1211-1212, lv denied 20 NY3d 985;
see generally People v Crimmins, 36 NY2d 230, 241-242).

     By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his challenge in appeal
No. 1 to that ruling (see People v Reyes, 144 AD3d 1683, 1685). In
any event, that contention lacks merit because “ ‘[t]he court’s
Sandoval compromise . . . reflects a proper exercise of the court’s
discretion’ ” (People v Monk, 57 AD3d 1497, 1499, lv denied 12 NY3d
785 ). We reject defendant’s further contention in appeal No. 1 that
the court abused its discretion in denying his request for new counsel
on the eve of trial inasmuch as defendant failed to show good cause
for the request (see People v Farmer, 132 AD3d 1238, 1238-1239, lv
denied 27 NY3d 1068; see generally People v Porto, 16 NY3d 93, 99-
100). Finally, with respect to appeal No. 1, the sentence is not
unduly harsh or severe.

     With respect to appeal No. 2, we conclude that the court did not
err in denying defendant’s motion seeking to vacate the judgment
either on the ground that there was an alleged Brady violation or on
the ground that he was denied effective assistance of counsel. Both
grounds for defendant’s motion are based upon an alleged conflict of
interest related to a prosecution witness. Defendant contends that
the People violated their Brady obligation by failing to provide
information regarding convictions that a witness had in 1993 for petit
larceny, and that defense counsel was ineffective inasmuch as his
office had previously represented the prosecution witness, in 1998,
                                 -3-                           229
                                                         KA 11-01294

2001 and 2006. With respect to the alleged Brady violation, we agree
with defendant that the convictions constitute Brady material (see
People v Valentin, 1 AD3d 982, 982-983, lv denied 1 NY3d 602).
However, even assuming, arguendo, that the information regarding those
convictions was available to the People (see id. at 983), we conclude
that there is no “ ‘reasonable possibility’ ” that the information
“would have changed the result of the proceedings” (People v Fuentes,
12 NY3d 259, 263, rearg denied 13 NY3d 766).

     We further conclude that defendant was not denied effective
assistance of counsel. “To prevail on an ineffective assistance of
counsel claim, a defendant must first demonstrate the existence of a
potential conflict of interest . . . Defendant must also show that the
conduct of his defense was in fact affected by the operation of the
conflict of interest, or that the conflict operated on the
representation . . . , and defendant failed to make such a showing
here . . . In light of the fact that defense counsel did not know of
the conflict at the time of the trial, there is no basis to conclude
that the potential conflict hindered his representation of defendant”
(People v Weeks, 15 AD3d 845, 847, lv denied 4 NY3d 892 [internal
quotation marks omitted]).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
