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

797
KA 10-01088
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JONATHAN MCNITT, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JONATHAN MCNITT, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 18, 2009. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree,
resisting arrest and disorderly conduct.

     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 second degree (Penal Law §
120.05 [former (3)]), resisting arrest (§ 205.30), and disorderly
conduct (§ 240.20 [3]). Contrary to defendant’s contention, County
Court did not abuse its discretion in denying his request for new
counsel (see generally People v Rolfe, 83 AD3d 1219, 1220, lv denied
17 NY3d 809). The record establishes that the court made a sufficient
inquiry and determined that there was no good cause for substitution
(see generally People v Linares, 2 NY3d 507, 510-511). Defendant
failed to preserve for our review his contention that the court erred
in admitting in evidence testimony regarding an uncharged crime (see
People v Thomas, 85 AD3d 1572, 1572; People v Kelly, 71 AD3d 1520,
1520, lv denied 15 NY3d 775). In any event, his contention is without
merit inasmuch as the testimony was relevant to establish defendant’s
motive and to provide relevant background information (see Thomas, 85
AD3d at 1572; People v Monzon, 289 AD2d 595, lv denied 98 NY2d 712).
By failing to object to his appearance in prison garb at trial,
defendant failed to preserve for our review his contention that he was
thereby denied a fair trial (see People v Walker, 259 AD2d 1026, 1027,
lv denied 93 NY2d 1029), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Finally, upon our review of the
evidence, the law, and the circumstances of this case, viewed in
                                 -2-                           797
                                                         KA 10-01088

totality and as of the time of the representation, we reject
defendant’s contention that he received ineffective assistance of
counsel (see generally People v Baldi, 54 NY2d 137, 147).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
