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

580
KA 10-01437
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKY BENNETT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 8, 2010. The judgment
convicted defendant, upon a jury verdict, of arson in the third degree
and attempted arson in the third 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 arson in the third degree (Penal Law § 150.10
[1]) and attempted arson in the third degree (§§ 110.00, 150.10 [1]).
We reject defendant’s contention that Supreme Court erred in admitting
in evidence a tape-recorded conversation between defendant and his
former fiancée. Contrary to defendant’s contention, the People laid a
proper foundation for the admission in evidence of that recording (see
People v Hurlbert, 81 AD3d 1430, 1431, lv denied 16 NY3d 896; see
generally People v Ely, 68 NY2d 520, 527), and the court did not abuse
its discretion in concluding that the recording was sufficiently
audible to warrant its admission in evidence (see People v Cleveland,
273 AD2d 787, 788, lv denied 95 NY2d 864). Defendant’s further
contention that the court erred in admitting in evidence the recording
of a jailhouse telephone call between defendant and his girlfriend is
not preserved for our review (see generally People v Jacquin, 71 NY2d
825, 826-827), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).

     We reject the contention of defendant “that the court failed to
make an appropriate inquiry into his complaints concerning defense
counsel and in response to his request for substitution of counsel.
Defendant ‘did not establish a serious complaint concerning defense
counsel’s representation and thus did not suggest a serious
                                 -2-                           580
                                                         KA 10-01437

possibility of good cause for substitution [of counsel]’ ” (People v
Adger, 83 AD3d 1590, 1591, lv denied 17 NY3d 857; see generally People
v Moore, 41 AD3d 1149, 1150-1151, lv denied 9 NY3d 879, 992). In any
event, inasmuch as defendant did not subsequently express
dissatisfaction with defense counsel or renew his request for new
counsel, we conclude under the circumstances of this case that his
request for substitution of counsel was abandoned (see People v
Ocasio, 81 AD3d 1469, 1470, lv denied 16 NY3d 898, cert denied ___ US
___, 132 S Ct 318).

     We also reject the contention of defendant that the court erred
in denying that part of his second omnibus motion seeking to sever the
counts of the indictment. We conclude that the counts were properly
joined inasmuch as “they are ‘defined by the same or similar statutory
provisions and consequently are the same or similar in law’ ” (People
v Davis, 19 AD3d 1007, 1007, lv denied 21 AD3d 1442; see CPL 200.20
[2] [c]). Defendant “ ‘failed to meet his burden of submitting
sufficient evidence of prejudice from the joinder to establish good
cause to sever’ ” (People v Ogborn, 57 AD3d 1430, 1430, lv denied 12
NY3d 786; see CPL 200.20 [3]), and the court therefore did not abuse
its discretion in denying that part of the second omnibus motion
(see People v Owens, 51 AD3d 1369, 1370-1371, lv denied 11 NY3d 740;
People v Dozier, 32 AD3d 1346, 1346-1347, lv dismissed 8 NY3d 880).
Viewing the evidence, the law and the circumstances of this case, in
totality and as of the time of representation, we conclude that
defense counsel provided meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crimes 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 (see generally Bleakley, 69 NY2d at 495).
Finally, the sentence is not unduly harsh or severe.




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
