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

203
KA 10-01793
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES R. COOPER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered July 21, 2010. The judgment convicted
defendant, upon a nonjury verdict, of grand larceny in the fourth
degree (seven counts) and criminal mischief in the fourth 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 upon a nonjury verdict of seven counts of grand larceny
in the fourth degree (Penal Law § 155.30 [4]) and one count of
criminal mischief in the fourth degree (§ 145.00 [1]). In appeal No.
2, defendant appeals from a judgment convicting him upon a nonjury
verdict of five counts of grand larceny in the fourth degree (§ 155.30
[4]), two counts of petit larceny (§ 155.25), and one count of
criminal mischief in the fourth degree (§ 145.00 [1]).

     With respect to the judgment in appeal No. 1, we reject
defendant’s contention that he was denied the right to testify before
the grand jury and that County Court erred in denying his motion to
dismiss the indictment on that ground. The record establishes that
defendant refused to testify before the grand jury when County Court
(Connell, J.) determined, following a hearing, that he was not
entitled to removal of the restraints that had been placed on him by
correction officers (see generally People v Best, 19 NY3d 739, 743).
“Inasmuch as defendant chose not to testify before the grand jury, it
cannot be said that he was denied his statutory right to do so”
(People v Buccina, 62 AD3d 1252, 1254, lv denied 12 NY3d 913).
Although we agree with defendant that the court erred in failing to
articulate on the record a rational basis for the restraints, we note
that the prosecutor was directed by the court to provide a cautionary
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                                                         KA 10-01793

instruction to dispel any prejudice resulting from defendant
testifying in restraints (see People v Felder [appeal No. 2], 201 AD2d
884, 885, lv denied 83 NY2d 871; see also People v Burroughs, 108 AD3d
1103, 1106, lv denied 22 NY3d 995; People v Pennick, 2 AD3d 1427,
1427-1428, lv denied 1 NY3d 632). However, because he refused to
testify, defendant has made it impossible for us to determine on the
record before us whether his appearance before the grand jury
“fail[ed] to conform to the requirements of article [190] to such
degree that the integrity [of the grand jury proceeding was] impaired
and prejudice to the defendant may [have] result[ed]” (CPL 210.35 [5];
see Buccina, 62 AD3d at 1254).

      We reject defendant’s further contention in appeal No. 1 that
County Court (DeMarco, J.), which issued the judgments in appeal Nos.
1 and 2, violated the “law of the case” by failing to conduct a Weaver
hearing with respect to the placement of a GPS tracking device on a
motor vehicle owned by defendant’s sister (see People v Weaver, 49
NY2d 1012). The record establishes that the GPS device was placed
pursuant to a warrant and defendant failed to contest the warrant (see
People v Wilson, 82 AD3d 797, 797, lv denied 16 NY3d 901).

     In appeal No. 2, defendant challenges the placement of a GPS
device on a motor vehicle owned by a commercial car rental agency and
rented to defendant’s sister, but he failed to demonstrate a
legitimate expectation of privacy in that vehicle (see People v Lacey,
66 AD3d 704, 704-705, lv denied 14 NY3d 772). The court therefore
properly determined that defendant lacked standing to challenge the
placement of the GPS device on that vehicle (see id. at 705).

     Contrary to defendant’s further contention in both appeals, the
court properly determined that he forfeited his right to counsel by
his persistent course of egregious conduct toward successive assigned
counsel, consisting of threats and other abusive behavior (see People
v Wilkerson, 294 AD2d 298, 298-299, lv denied 98 NY2d 772; People v
Sloane, 262 AD2d 431, 432, lv denied 93 NY2d 1027). Defendant failed
to preserve for our review his contention in both appeals that the
court erred in failing to specify the offenses it would consider in
rendering a verdict (see People v Mitchell, 254 AD2d 830, 831, lv
denied 92 NY2d 984). “In any event, the court’s failure to comply
with CPL 320.20 (5) is harmless error inasmuch as defendant was
convicted of offenses charged in the indictment, not lesser included
offenses” (id.; see People v Wright, 16 AD3d 982, 983, lv denied 4
NY3d 892).

     Finally, we reject defendant’s contention in appeal No. 2 that
the court abused its discretion in consolidating the indictments and
denying his motion to sever (see People v McCune, 210 AD2d 978, 978-
979, lv denied 85 NY2d 864). Although based upon different criminal
transactions, the offenses are the “same or similar in law” (CPL
200.20 [2] [c]), and defendant failed to make a convincing showing
that he had important testimony to give on one count and a genuine
need to refrain from testifying on others (see People v Burrows, 280
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                                                      KA 10-01793

AD2d 132, 133-134, lv denied 96 NY2d 826).




Entered:   May 8, 2015                       Frances E. Cafarell
                                             Clerk of the Court
