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

73
KA 12-00687
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANKLIN A. RUPERT, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered February 10, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the second 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 burglary in the second degree (Penal Law §
140.25 [2]). Contrary to defendant’s contention, County Court (John
L. DeMarco, J.) did not abuse its discretion in denying his request
for new assigned counsel after “inquiring as to ‘the nature of the
disagreement’ ” between defendant and defense counsel inasmuch as
defendant failed to establish that there was “ ‘good cause’ ” for
substitution (People v Porto, 16 NY3d 93, 100). Instead, defendant’s
allegations regarding defense counsel “evinced disagreements with
counsel over strategy . . . , which were not sufficient grounds for
substitution” (People v Blackwell, 129 AD3d 1690, 1691 [internal
quotation marks omitted]).

     Defendant failed to object to the testimony of two police
officers regarding statements he made at the scene of his arrest,
i.e., “I’m here” in response to a “K-9 warning,” and “no,” in response
to a question by a police officer whether anyone else was in the
house, and he thus failed to preserve for our review his contention
that the testimony deprived him of a fair trial because those
statements were not included in the CPL 710.30 notice (see People v
Davis, 118 AD3d 1264, 1266, lv denied 24 NY3d 1083). Even assuming,
arguendo, that those statements should have been included in the CPL
710.30 notice, we conclude that any error in admitting them in
evidence is harmless because the evidence against defendant is
overwhelming, and there is no reasonable possibility that defendant
would have been acquitted if the statements had not been admitted in
                                 -2-                            73
                                                         KA 12-00687

evidence (see People v Roosevelt, 125 AD3d 1452, 1454, lv denied 25
NY3d 1076; see generally People v Crimmins, 36 NY2d 230, 237).

     Contrary to defendant’s contention, the court (Melchor E. Castro,
A.J.) properly determined that the People proved beyond a reasonable
doubt that defendant is a persistent violent felony offender by
establishing that he was convicted of burglary in the second degree on
two occasions within 10 years prior to the commission of the instant
offense (see Penal Law § 70.04 [1] [b] [iv], [v]). The evidence
presented by the People included a fingerprint comparison for the
three offenses, together with the certificates of conviction of the
two predicate offenses, as well as the second felony offender
information for the second predicate offense (see People v Clyde, 90
AD3d 1594, 1596, lv denied 19 NY3d 971). Defendant correctly contends
that the court erred in determining how much of the 10-year period was
tolled by periods of incarceration when it included a period of parole
supervision, and in using the incorrect date for the commission of the
instant offense. Upon our review of the record, however, we conclude
that the sentence for the first predicate offense was not imposed more
than ten years before the commission of the instant offense (see §
70.04 [1] [b] [iv], [v]; see generally People v VanHooser [appeal No.
2], 126 AD3d 1531, 1532). Defendant failed to object to the testimony
of a police officer at the persistent violent felony offender hearing,
elicited during cross-examination, regarding a statement that
defendant made following his arrest, and which was not included in the
CPL 710.30 notice, and he thus failed to preserve for our review his
contention that the statement was not admissible (see People v Oliver,
63 NY2d 973, 975). Contrary to defendant’s contention, we conclude
that he received meaningful representation at the persistent violent
felony offender hearing (see generally People v Baldi, 54 NY2d 137,
147; People v Gregg, 107 AD3d 1451, 1452).




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
