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

256
KA 11-02497
PRESENT: SMITH, J.P., CENTRA, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD LARKINS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RONALD LARKINS, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered December 2, 2011. The judgment convicted
defendant, upon a jury verdict, of attempted robbery 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 attempted robbery in the first degree (Penal
Law §§ 110.00, 160.15 [4]) in connection with his attempt to rob a
Ramada Inn in DeWitt, Onondaga County (hereafter, DeWitt attempted
robbery), at approximately 12:25 p.m. on August 24, 2010. The
evidence at trial included a video recording made by the hotel’s
security system, in which defendant can clearly be seen entering the
building, speaking with the hotel desk clerk, drawing a weapon and
pointing it over the counter at the clerk, but then immediately
fleeing the building after the clerk ducked and ran from the counter.
The video recording shows that defendant wore aviator-style
sunglasses, a black shirt or jacket, and a blue necktie. A witness
also testified that a man fitting defendant’s description and wearing
a T-shirt or tank top ran from the vicinity of the Ramada Inn
immediately after the DeWitt attempted robbery and then left the area
in a brown- or rust-colored Toyota or Lexus.

     Members of the New York State Police testified that they stopped
defendant on the New York State Thruway approximately 90 minutes after
the DeWitt attempted robbery, after Thruway toll collectors at an exit
near Weedsport indicated that a brown Toyota or Lexus, generally
matching the description of the getaway car, had just entered the
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Thruway. The police took defendant into custody and found $225 in his
pocket. In the vehicle, they also found a necktie, a handgun, and a
pair of sunglasses matching those used by the perpetrator in the
DeWitt attempted robbery. At the time of the stop, defendant was
wearing, inter alia, a green dress shirt on top of a red T-shirt.

     Defendant was also charged, in a separate indictment in Cayuga
County, with the robbery of a Best Western hotel in Weedsport
(hereafter, Weedsport robbery), which occurred approximately an hour
after, but prior to defendant’s arrest on, the DeWitt attempted
robbery. Pursuant to a Molineux ruling (see People v Molineux, 168 NY
264, 293), the front desk clerk from the hotel in the Weedsport
robbery testified, during the trial of the DeWitt attempted robbery
that is before us on this appeal, that she was robbed at gunpoint by a
man wearing a green shirt. She further testified that the perpetrator
took approximately $200, although she was not certain of the exact
amount taken. Pursuant to County Court’s Molineux ruling, that
witness was not permitted to identify defendant as the perpetrator of
the Weedsport robbery.

     Defendant contends that he was deprived of a fair trial by the
court’s Molineux ruling. In determining that the evidence would be
admitted, the court concluded, among other things, that the evidence
was “relevant and material to . . . the issue[s] of intent” and
identification, and “inextricably interwoven” with the evidence of the
charge of attempted robbery being tried. The court also gave limiting
instructions regarding the proper use of the Molineux evidence by the
jury, which defendant does not challenge on appeal. We conclude that
the court’s Molineux ruling was not an abuse of discretion (see
generally People v Duperroy, 88 AD3d 606, 607, lv denied 18 NY3d 957;
People v Galloway, 61 AD3d 520, 520-521, lv denied 12 NY3d 915).

     “It is fundamental that evidence of uncharged crimes is not
admissible if the sole purpose is to show that the defendant was
predisposed to commit the crime charged . . . On the other hand,
evidence relevant to prove some fact in the case, other than the
defendant’s criminal propensity, is not rendered inadmissible simply
because it may also reveal that the defendant has committed other
crimes” (People v Allweiss, 48 NY2d 40, 46-47). Pursuant to the rule
in Molineux (168 NY at 293), “evidence of uncharged crimes may be
relevant to show (1) intent, (2) motive, (3) knowledge, (4) common
scheme or plan, or (5) identity of the defendant” (People v Alvino, 71
NY2d 233, 242). “As a corollary, such evidence may be allowed when,
as here, it . . . is found to be needed as background material or to
complete the narrative of the episode” (People v Till, 87 NY2d 835,
837 [internal quotation marks omitted]).

     Here, the court concluded that the Molineux evidence was
admissible to establish defendant’s intent, identity, and motive, and
to complete the narrative of the events. Initially, we agree with
defendant that such evidence was not properly admitted on the issue of
identity inasmuch as defendant’s identity as the perpetrator of the
attempted robbery was “ ‘conclusively established’ ” by the clear
video recording from the hotel’s security system (People v Robinson,
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                                                         KA 11-02497

68 NY2d 541, 548).

     We conclude, however, that the court properly admitted the
Molineux evidence pursuant to the remaining grounds upon which it
relied, i.e., to establish defendant’s intent and motive, and to
complete the narrative, with respect to the crime herein. Along with
the other elements of the crime herein, the People were required to
prove beyond a reasonable doubt that defendant intended to steal
property (see Penal Law § 160.15; People v De Jesus, 123 AD2d 563,
564, lv denied 69 NY2d 745; see generally People v Starks, 46 AD3d
1426, 1427, lv denied 10 NY3d 817; People v Osinowo, 28 AD3d 1011,
1012-1013, lv denied 7 NY3d 792). Contrary to defendant’s contention,
the court properly admitted evidence that defendant stole property
during the Weedsport robbery as evidence that he intended to steal
property during the crime herein. It has long been settled that the
Molineux rule contains an “exception thereto[] that permits such
evidence when ‘the transactions in respect to which evidence was given
were all intimately connected in point of time, place[,] and
circumstance with that for which the accused was indicted, so that
they formed a continuous series of transactions, each throwing light
upon the other, upon the question of knowledge, intent, and motive’ ”
(People v Friedman, 149 App Div 873, 875). Here, the jury could
conclude, based upon the evidence that the Weedsport robbery occurred
shortly after the DeWitt attempted robbery, that defendant was engaged
in “a continuous series of transactions” (id.), pursuant to which he
first attempted to rob the hotel in DeWitt and, having failed to
obtain money during that crime, continued his criminal efforts until
he was successful in the Weedsport robbery. Furthermore, the
“probative and explanatory value [of the Molineux evidence] clearly
outweighed the potential prejudice to defendant, particularly since
the later incident can readily be viewed as a continuation of the”
crime herein (People v Tarver, 2 AD3d 968, 969). Thus, the evidence
that defendant committed another robbery a short time after this
unsuccessful attempt was admissible to show his intent and motive to
commit this crime (see generally People v Burnell, 89 AD3d 1118, 1120-
1121, lv denied 18 NY3d 922).

     The court also properly admitted the Molineux evidence to
complete the narrative of the crime herein and to provide necessary
background information for it. Absent the Molineux evidence, the jury
would have been left to speculate why defendant was stopped on the
Thruway about five exits away from the scene of the crime herein and
over an hour later, in a vaguely described vehicle, wearing different
clothing than either the clerk or the witness described defendant as
wearing, and possessing $225 in cash. Thus, the Molineux evidence was
properly admitted to explain the reason for the stop (see People v
Radoncic, 259 AD2d 428, 428, lv denied 93 NY2d 1005; People v
Hernandez, 139 AD2d 472, 477, lv denied 72 NY2d 957), and to “provide
background information as to how and why the police pursued and
confronted defendant” (People v Tosca, 98 NY2d 660, 661; cf. People v
Resek, 3 NY3d 385, 388-390; see generally Till, 87 NY2d at 836-837).
In addition, the evidence of the Weedsport robbery occurring between
the time of the crime herein and the time of the Thruway stop of
                                 -4-                           256
                                                         KA 11-02497

defendant, coupled with the additional clothing items found in his
car, explained how defendant was arrested in a different shirt than
the one he wore during the crime herein, “provided a complete and
coherent narrative of the events leading to defendant’s arrest”
(People v Antegua, 7 AD3d 466, 467, lv denied 3 NY3d 670; see People v
Buchanan, 95 AD3d 1433, 1436, lv denied 22 NY3d 1029), and was
“inextricably interwoven with directly related material in the sense
that it is explanatory of the acts done” in the crime charged in the
indictment (People v Johnson, 149 AD2d 930, 931, lv denied 73 NY2d
1017 [internal quotation marks omitted]; see People v Ely, 68 NY2d
520, 529; People v Ventimiglia, 52 NY2d 350, 361; People v Williams,
28 AD3d 1005, 1008, lv denied 7 NY3d 819).

     Furthermore, defense counsel argued at trial that the evidence,
most notably the video recording, demonstrated that defendant
committed only the crime of menacing. Therefore, especially after
“[c]onsidering the defense position that defendant [did not intend to
steal property, we conclude that] the Molineux evidence fell within
recognized exceptions and its probative value to the People’s case
outweighed its prejudice to defendant” (People v Smith, 63 AD3d 1301,
1303, lv denied 13 NY3d 862; see People v Bradford, 118 AD3d 1254,
1256, lv denied 24 NY3d 1082; People v Brown, 57 AD3d 1461, 1463, lv
denied 12 NY3d 814, reconsideration denied 12 NY3d 923). Thus, “[w]e
cannot say that the trial court abused its discretion when it allowed
. . . evidence of [subsequent] conduct relating to [the crime herein]
and gave proper limiting instructions to the jury” (People v Dorm, 12
NY3d 16, 19).

     We reject defendant’s contention that the court erred in denying
his requests for substitution of his second assigned counsel. It is
well settled that a court must carefully evaluate serious complaints
about counsel, and “should substitute counsel when a defendant can
demonstrate ‘good cause’ ” therefor (People v Linares, 2 NY3d 507,
510). Defendant’s requests to replace the second assigned counsel
were based on counsel’s alleged failure to file certain motions and on
frequent disagreements with defendant. We conclude that, “[a]t most,
defendant’s allegations evinced disagreements with counsel over
strategy . . . , which were not sufficient grounds for substitution”
(People v Agard, 107 AD3d 613, 613, lv denied 21 NY3d 1039; see
Linares, 2 NY3d at 511). Contrary to his further contention, “the
court made a sufficient inquiry into defendant’s complaints concerning
the alleged lack of communication between defendant and defense
counsel. The court ‘repeatedly allowed defendant to air his concerns
about defense counsel, and after listening to them reasonably
concluded that defendant’s vague and generic objections had no merit
or substance’ ” (People v Reese, 23 AD3d 1034, 1035, lv denied 6 NY3d
779, quoting Linares, 2 NY3d at 511), and thus defendant’s objections
were insufficient to demonstrate “ ‘good cause’ ” for substitution of
counsel (Linares, 2 NY3d at 510). To the extent that there was a
hostile relationship between defendant and counsel, we conclude that
defendant was the source of that hostility, and that such hostility
was “unjustified . . . and . . . did not require substitution” (People
v Walton, 14 AD3d 419, 420, lv denied 5 NY3d 796).
                                 -5-                           256
                                                         KA 11-02497

     Contrary to defendant’s further contention, the court did not
abuse its discretion in denying his request to proceed pro se.
Defendant’s request to represent himself was not clear and
unequivocal. Rather, his request was made in the alternative to his
frequent and unsupported requests for substitution of assigned
counsel. Thus, the court did not abuse its discretion in denying
those requests (see People v Wilson, 112 AD3d 1317, 1318, lv denied 23
NY3d 1069; cf. People v Slaughter, 78 NY2d 485, 491-492; see generally
Matter of Kathleen K. [Steven K.], 17 NY3d 380, 384-385).

     Contrary to defendant’s further contention, the evidence viewed
in the light most favorable to the prosecution is legally sufficient
to support the conviction (see People v Bleakley, 69 NY2d 490, 495;
People v Foster, 64 NY2d 1144, 1146, cert denied 474 US 857; People v
Contes, 60 NY2d 620, 621). Furthermore, viewing the evidence in light
of the elements of the crime as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s further contention
that the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Defendant failed to preserve for our review his contention that
the prosecutor’s stated reasons for striking a prospective juror in
response to a Batson challenge were pretextual, inasmuch as he “failed
to articulate [to the court] any reason why he believed that the
prosecutor’s explanations were pretextual” (People v Santiago, 272
AD2d 418, 418, lv denied 95 NY2d 907; see People v Smocum, 99 NY2d
418, 423-424). In any event, that contention lacks merit. “The court
was in the best position to observe the demeanor of the prospective
juror[] and the prosecutor, and its determination that the
prosecutor’s reasons for exercising peremptory challenges with respect
to [the] . . . prospective juror[] were race-neutral and not
pretextual is entitled to great deference” (People v Williams, 13 AD3d
1214, 1215, lv denied 4 NY3d 857; see People v Carter, 38 AD3d 1256,
1256-1257, lv denied 8 NY3d 982).

     Defendant failed to preserve for our review his additional
contention that he was penalized for rejecting a plea offer and
exercising his right to a jury trial (see People v Stubinger, 87 AD3d
1316, 1317, lv denied 18 NY3d 862; People v Griffin, 48 AD3d 1233,
1236-1237, lv denied 10 NY3d 840). In any event, that contention is
without merit (see Stubinger, 87 AD3d at 1317), and the sentence is
not unduly harsh or severe. We have reviewed defendant’s remaining
contentions in his main and pro se supplemental briefs and conclude
that none warrant reversal or modification of the judgment.




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