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

1292
KA 11-00817
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAURICE SINKLER, DEFENDANT-APPELLANT.


MATTHEW D. NAFUS, SCOTTSVILLE, FOR DEFENDANT-APPELLANT.

MAURICE SINKLER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered May 6, 2010. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third degree.

     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 criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [3]). Contrary to defendant’s contention,
Supreme Court properly discharged a sworn juror. A court must
discharge a sworn juror who is grossly unqualified to serve in the
case, i.e., a juror who “possesses a state of mind which would prevent
the rendering of an impartial verdict” (People v Buford, 69 NY2d 290,
298 [internal quotation marks omitted]; see CPL 270.35 [1]). The
juror here was grossly unqualified inasmuch as she indicated that she
was having personal problems at home that prevented her from giving
her undivided attention to the case, she had anxiety, and she stated
that she could not be fair and impartial (see People v Daniels, 59
AD3d 730, 730-731, lv denied 12 NY3d 852; People v Cook, 275 AD2d
1020, 1020-1021, lv denied 95 NY2d 933).

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient with respect to the element of
possession in both crimes inasmuch as his motion for a trial order of
dismissal was not “specifically directed” at the alleged error now
asserted on appeal (People v Gray, 86 NY2d 10, 19). In any event, his
contention is without merit inasmuch as defendant admitted in his
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                                                        KA 11-00817

statement to the police that his codefendant told him that she wanted
to rob a store and handed him the handgun after he asked to see it.
Contrary to defendant’s further contention, 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 People v Bleakley,
69 NY2d 490, 495).

     Defendant next contends that the court erred in denying his
request to instruct the jury on the defense of temporary innocent
possession of the handgun. We reject that contention. That
instruction is warranted only where there is “proof in the record
showing a legal excuse for [the defendant] having the weapon in his
[or her] possession as well as facts tending to establish that, once
possession has been obtained, the weapon had not been used in a
dangerous manner” (People v Williams, 50 NY2d 1043, 1045; see People v
Ward, 104 AD3d 1323, 1324-1325, lv denied 21 NY3d 1011). Viewing the
evidence in the light most favorable to defendant (see Williams, 50
NY2d at 1044), we conclude that the jury could not have found that
defendant’s possession was innocent and, indeed, the evidence “is
‘utterly at odds with . . . [a] claim of innocent possession’ ”
(People v Snyder, 73 NY2d 900, 902, quoting Williams, 50 NY2d at
1045). We reject defendant’s further contention that the sentence is
unduly harsh and severe.

     In his pro se supplemental brief, defendant contends that the
court failed to make a proper inquiry regarding a conflict with his
assigned counsel. We reject that contention. It is well settled that
courts must “ ‘carefully evaluate serious complaints about counsel’ ”
and should substitute counsel in situations where defendant
demonstrates “ ‘good cause,’ ” such as a conflict of interest or other
irreconcilable conflict with counsel (People v Linares, 2 NY3d 507,
510, quoting People v Medina, 44 NY2d 199, 207; see People v Sides, 75
NY2d 822, 824). Here, when defendant sought to “fire” defense
counsel, the court’s duty to inquire was not triggered inasmuch as
defendant made only “generalized complaints about counsel” (People v
Augustine, 89 AD3d 1238, 1240, affd 21 NY3d 949; see Medina, 44 NY2d
at 208). It was not until defense counsel received a copy of a
complaint sent by defendant to the Grievance Committee approximately
two months later that an irreconcilable conflict arose, at which time
the court assigned new counsel.

     We reject defendant’s further contentions in his pro se
supplemental brief that the court erred in denying his request to
withdraw his waiver of the probable cause and Huntley hearings and
that defense counsel was ineffective for allowing him to waive those
hearings. The record establishes that the waiver was made knowingly,
voluntarily, and intelligently (see People v Boyd, 27 AD3d 1124, 1124,
lv denied 7 NY3d 752; People v Ford, 249 AD2d 978, 978, lv denied 92
NY2d 924), and defendant failed “to demonstrate the absence of
strategic or other legitimate explanations” for defense counsel’s
waiver of those hearings (People v Rivera, 71 NY2d 705, 709; see
People v Dennis, 206 AD2d 843, 844, lv denied 84 NY2d 867; People v
Flemming, 191 AD2d 987, 988, lv denied 82 NY2d 717; People v Brown,
                                 -3-                       1292
                                                      KA 11-00817

122 AD2d 546, 546, lv denied 68 NY2d 810).




Entered:   December 27, 2013                 Frances E. Cafarell
                                             Clerk of the Court
