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

796
KA 11-00972
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MIGUEL A. JARAMILLO, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MIGUEL A. JARAMILLO, DEFENDANT-APPELLANT PRO SE.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered March 7, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree,
criminal possession of a weapon in the fourth degree and perjury in
the first 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 assault in the first degree (Penal Law § 120.10
[1]), criminal possession of a weapon in the fourth degree (§ 265.01
[2]) and perjury in the first degree (§ 210.15). By making only a
general motion for a trial order of dismissal, defendant failed to
preserve for our review his contention that the evidence is legally
insufficient to establish the element of serious physical injury with
respect to the assault count (see People v Gray, 86 NY2d 10, 19).
Contrary to defendant’s further contention, viewing the evidence in
light of that element of assault 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 with respect to that element (see
generally People v Bleakley, 69 NY2d 490, 495). We conclude that the
jury properly weighed the evidence in determining that defendant
inflicted serious physical injury when he stabbed the victim, thereby
lacerating muscle tissue, puncturing the victim’s liver, and causing
permanent scarring (see People v Barnett, 16 AD3d 1128, 1129, lv
denied 4 NY3d 883).

     County Court properly exercised its discretion in denying
defendant’s request for assignment of new counsel (see generally
                                 -2-                           796
                                                         KA 11-00972

People v Porto, 16 NY3d 93, 99-100). “[D]efendant’s disagreements
with counsel over trial strategy did not establish the requisite good
cause for substitution of counsel” (People v Saladeen, 12 AD3d 1179,
1180, lv denied 4 NY3d 767), nor was substitution of counsel warranted
based on defendant’s apparent attempt to create a conflict of interest
by commencing an action in federal court against the Public Defender
(see People v Walton, 14 AD3d 419, 420, lv denied 5 NY3d 796; People v
Davis, 226 AD2d 125, 126, lv denied 88 NY2d 1020).

     The record of the suppression hearing supports the determination
of the court that the police obtained defendant’s consent to enter his
residence (see People v Nielsen, 89 AD3d 1041, 1042, lv denied 18 NY3d
996), and properly seized a shotgun that was in plain view in his
living room (see People v Brown, 96 NY2d 80, 88-89). We agree with
defendant, however, that the record does not support the court’s
determination that the People met their burden of establishing that
defendant consented to the seizure of a bulletproof vest from his
residence (see People v McFarlane, 93 AD3d 467, 467-468).
Nevertheless, we conclude that the court’s error in refusing to
suppress the vest on that ground is harmless beyond a reasonable doubt
(see generally People v Crimmins, 36 NY2d 230, 237).

     We reject defendant’s contention that the court violated his
right to a public trial by conducting certain proceedings in chambers.
The record establishes that the proceedings at issue were distinct
from trial proceedings that must be conducted in public (see People v
Olivero, 289 AD2d 1082, 1082, lv denied 98 NY2d 639). Defendant
failed to preserve for our review his further contentions that the
prosecutor improperly shifted the burden of proof during summation
(see People v Glenn, 72 AD3d 1567, 1568, lv denied 15 NY3d 805), and
that the court improperly relied on the presentence report in
determining the amount of restitution (see People v Roots, 48 AD3d
1031, 1032). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). Further, absent any indication that the court
relied upon allegedly erroneous information in the presentence report
in imposing the sentence, we decline to disturb the sentence based
upon the court’s failure to redact that information (see People v
Molyneaux, 49 AD3d 1220, 1222, lv denied 10 NY3d 937). The sentence
is not unduly harsh or severe. We have considered the contentions
raised by defendant in his pro se supplemental brief and conclude that
none warrants modification or reversal of the judgment.




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
