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

340
KA 09-01766
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL WILLIAMS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered June 30, 2009. The judgment convicted defendant,
upon a jury verdict, of sexual abuse in the first degree, rape in the
third degree and criminal impersonation in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating that part convicting
defendant of criminal impersonation in the first degree and dismissing
count five of the superseding indictment, and by vacating the sentence
imposed for rape in the third degree, and the matter is remitted to
Onondaga County Court for resentencing on that count, and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of sexual abuse in the first degree (Penal Law §
130.65 [1]), rape in the third degree (§ 130.25 [3]), and criminal
impersonation in the first degree (§ 190.26 [1], [2]). We reject
defendant’s contention that the conviction of sexual abuse must be
reversed because County Court’s jury instructions created a
possibility that the jury convicted him upon a theory different from
that set forth in the superseding indictment (hereinafter,
indictment). Although defendant failed to object to the court’s
instructions and thus failed to preserve that contention for our
review, we have previously “conclude[d] that preservation is not
required” with respect to this issue (People v Greaves, 1 AD3d 979,
980), because “[t]he right of an accused to be tried and convicted of
only those crimes and upon only those theories charged in the
indictment is fundamental and nonwaivable” (People v Rubin, 101 AD2d
71, 77, lv denied 63 NY2d 711). Here, the indictment, as amplified by
the bill of particulars, charged defendant with committing the crime
of sexual abuse in the first degree by physical force (see generally §
130.00 [8] [a]), whereas the court’s instructions permitted the jury
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                                                         KA 09-01766

to convict defendant upon a finding that he committed the crime by
means of an expressed or implied threat (see generally § 130.00 [8]
[b]). Notwithstanding that error, we conclude that reversal is not
required under the circumstances of this case. “Had there been
evidence from which the . . . jury could have concluded that defendant
accomplished his crimes through the use of express or implied threats
that overcame the complainant’s will, then the court’s
instructions—which permitted the jury to consider that uncharged
theory—might well have violated defendant’s right to be tried only for
crimes with which the [g]rand [j]ury had charged him. [Here, to the
contrary], there was no such evidence” (People v Grega, 72 NY2d 489,
496).

     We agree with defendant, however, that the court’s jury
instructions with respect to the crime of criminal impersonation in
the first degree permitted the jury to convict him upon a theory not
charged in the indictment, and thus violated his right to be tried for
only those crimes charged in the indictment, as limited by the bill of
particulars (see generally Matter of Corbin v Hillery, 74 NY2d 279,
290, affd sub nom. Grady v Corbin, 495 US 508, overruled on other
grounds United States v Dixon, 509 US 688). Again, we address
defendant’s contention despite his failure to preserve it for our
review (see Rubin, 101 AD2d at 77). The fifth count of the indictment
alleged that defendant committed the crime of criminal impersonation
when he pretended to be a police officer and, “in the course of such
pretense, committed or attempted to commit the felony of [r]ape in the
first degree.” The court’s instructions, however, permitted the jury
to convict defendant upon finding that he committed any felony in the
course of pretending to be a police officer, thus allowing the jury to
convict defendant upon a theory not charged in the indictment. We
therefore modify the judgment accordingly.

     Contrary to defendant’s contention, we conclude with respect to
the remaining counts that the conviction is supported by legally
sufficient evidence (see generally People v Bleakley, 69 NY2d 490,
495) and, 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 contrary to the weight of the
evidence with respect to those counts (see generally Bleakley, 69 NY2d
at 495).

     We reject defendant’s further contention that the court erred in
denying his request to exercise a peremptory challenge against a
prospective juror after both parties had accepted that prospective
juror and exhausted their challenges to the alternate juror, and after
the court declared jury selection to be complete. “There is nothing
in CPL 270.15 that would require a court to grant a defendant’s
request to exercise a peremptory challenge to a juror who had already
been accepted by both sides earlier in jury selection, but who had not
yet been sworn” (People v Smith, 278 AD2d 75, 76, lv denied 96 NY2d
763; see People v Brown, 52 AD3d 248, 248, lv denied 11 NY3d 735;
People v Smith, 11 AD3d 202, 203, lv denied 4 NY3d 748).

     Defendant further contends that he is entitled to a new trial
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                                                         KA 09-01766

because of prosecutorial misconduct and because the court erred in
several of its evidentiary rulings. Defendant alleges, inter alia,
that the prosecutor engaged in misconduct by eliciting testimony
regarding defendant’s postarrest silence during the People’s direct
case, and he further alleges that the court erred by permitting the
prosecutor to comment on that testimony during her opening and closing
statements. We reject those contentions. As a preliminary matter, we
reject the People’s contention that defendant failed to preserve his
contention for our review. Defense counsel objected, albeit
belatedly, to the prosecutor’s comments on defendant’s postarrest
silence during her opening statement, and promptly objected several
times to questions that elicited testimony concerning defendant’s
postarrest silence. Although defendant failed to preserve that part
of his contention concerning the prosecutor’s closing statement, under
the circumstances of this case we exercise our power to review that
part of defendant’s contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]), particularly because the
issue was raised earlier and thus was before the court in any event.

     Next, we agree with defendant that those comments by the
prosecutor during opening and closing statements were improper and
that the court erred in admitting testimony that he refused to answer
certain questions and remained silent with respect to others.
“Neither a defendant’s silence [nor his] invocation of the right
against self-incrimination during police interrogation can be used
against him on the People’s direct case” (People v Whitley, 78 AD3d
1084, 1085; see People v Capers, 94 AD3d 1475, 1476, lv denied 19 NY3d
971). We nevertheless conclude, “in light of the evidence presented,
. . . that any such errors were ‘harmless beyond a reasonable doubt’
inasmuch as there is ‘no reasonable possibility that the error[s]
might have contributed to defendant’s conviction’ ” (People v Murphy,
79 AD3d 1451, 1453, lv denied 16 NY3d 862, quoting People v Crimmins,
36 NY2d 230, 237; see Capers, 94 AD3d at 1476).

     With respect to defendant’s contention that he was denied
effective assistance of counsel, we conclude that “the evidence, the
law, and the circumstances of [this] particular case, viewed in
totality and as of the time of the representation, reveal that the
attorney provided meaningful representation” (People v Baldi, 54 NY2d
137, 147). Defense counsel, inter alia, appropriately cross-examined
the witnesses, gave cogent opening and closing statements, and
presented a viable defense theory that resulted in defendant’s
acquittal of the two most serious charges in the indictment.
Furthermore, defendant has failed “to demonstrate the absence of
strategic or other legitimate explanations” for his various
allegations of ineffectiveness (People v Rivera, 71 NY2d 705, 709).

     Contrary to defendant’s further contention, the court did not
abuse its discretion in denying his request for a new attorney or to
proceed pro se. “In determining whether good cause [for substitution
of counsel] exists, a trial court must consider the timing of the
defendant’s request, its effect on the progress of the case and
whether present counsel will likely provide the defendant with
meaningful assistance. Good cause determinations are necessarily
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                                                            KA 09-01766

case-specific and therefore fall within the discretion of   the trial
court” (People v Linares, 2 NY3d 507, 510). Furthermore,    “good cause
does not exist [where, as here,] defendants are guilty of   delaying
tactics or where, on the eve of trial, disagreements over   trial
strategy generate discord” (id. at 511).

     With respect to defendant’s contention that the court erred in
denying his request to represent himself, the record establishes that
his “request to represent himself was not clear and unequivocal.
Rather, the record shows that his request was made in connection with
applications for substitution of assigned counsel, and in the
alternative to those applications. Under those circumstances, the
[court] did not improvidently exercise its discretion in denying the .
. . request” (People v Littlejohn, 92 AD3d 898, 898, lv denied 19 NY3d
963; see generally People v Payton, 45 NY2d 300, 314, revd on other
grounds 445 US 573).

     We reject defendant’s contention that the sentences imposed on
the convictions of sexual abuse in the first degree and rape in the
third degree must run concurrently, inasmuch “as each count involved a
separate sexual act constituting a distinct offense” (People v Colon,
61 AD3d 772, 773, lv denied 13 NY3d 743; see People v Stiles, 78 AD3d
1570, 1570, lv denied 16 NY3d 863). The People correctly concede,
however, that the indeterminate term of imprisonment imposed upon the
conviction of rape in the third degree is illegal. That crime carries
a mandatory determinate sentence with a period of postrelease
supervision (see Penal Law § 70.80 [5] [b] [iv]; see also § 70.45 [2-
a] [g]). “Although this issue was not raised before the [sentencing]
court . . . , we cannot allow an [illegal] sentence to stand” (People
v Price, 140 AD2d 927, 928; see People v Thigpen, 30 AD3d 1047, 1049,
lv denied 7 NY3d 818). We therefore further modify the judgment by
vacating the sentence imposed on that count, and we remit the matter
to County Court for resentencing on that count. The remainder of the
sentence is not unduly harsh or severe.

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
