People v. Dibble

• Decision Date: 04 October 2019
• Docket Number: 815,KA 14–00761
• Citation: 176 A.D.3d 1584,112 N.Y.S.3d 352
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey J. DIBBLE, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1584

112 N.Y.S.3d 352

The PEOPLE of the State of New York, Respondent,

v.Jeffrey J. DIBBLE, Defendant–Appellant. (Appeal No. 1.)

815

KA 14–00761

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 4, 2019

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (JEFFERY FRIESEN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of attempted menacing a police officer or peace officer and dismissing count four of indictment No. 11–04–044, and as modified the judgment is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a nonjury verdict of attempted aggravated assault upon a police officer or a peace officer ( Penal Law §§ 110.00, 120.11 ), attempted criminal possession of a weapon in the second degree ( §§ 110.00, 265.03[3] ), attempted robbery in the third degree ( §§ 110.00, 160.05 ), attempted menacing a police officer or peace officer ( §§ 110.00, 120.18 ), and attempted escape in the third degree ( §§ 110.00, 205.05 ). The conviction in appeal No. 1 arose from a February 4, 2011 incident when an Ontario County Sheriff's Deputy was returning defendant to jail after defendant was arraigned in Town Court in another matter, and defendant lunged through the partition in the deputy's vehicle and placed his hand on the deputy's service weapon.

The arraignment from which defendant was being transported was related to charges stemming from a separate February 2, 2011 incident in which defendant led an Ontario County Sheriff's Deputy on a motor vehicle chase and thereafter brandished a knife. After he was convicted of the charges at issue in appeal No. 1, defendant entered a guilty plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) in connection with the February 2, 2011 incident. In appeal No. 2, defendant appeals from the judgment entered upon that guilty plea convicting him of driving while ability impaired by drugs ( Vehicle and Traffic Law § 1192[4] ) and menacing a police officer or peace officer ( Penal Law § 120.18 ).

While the criminal proceedings in appeal No. 1 and appeal No. 2 were pending, defendant became the subject of an investigation about various forgery incidents occurring in January 2011. On the same day as his guilty plea at issue in appeal No. 2, defendant entered another Alford plea in connection with the January 2011 forgery incidents. In appeal No. 3, defendant appeals from the judgment entered upon that guilty plea convicting him of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ).

In appeal No. 4, defendant appeals from an order denying, without a hearing, his motion pursuant to CPL 440.10 seeking to vacate the judgments of conviction at issue in appeal No. 1 and appeal No. 2.

With respect to appeal No. 1, defendant contends that his waiver of the right to a jury trial was not knowing, voluntary, or intelligent because County Court suggested during its waiver colloquy that, in a bench trial, it could consider matters outside of the trial record. Defendant, however, failed to preserve his contention for our review (see People v. Lane, 160 A.D.3d 1363, 1365, 76 N.Y.S.3d 299 [4th Dept. 2018] ; People v. Williams, 149 A.D.3d 986, 986, 50 N.Y.S.3d 305 [2d Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017] ), and we decline to exercise our power to review the contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We reject defendant's contention that the court abused its discretion in denying his request for substitution of counsel. It is well settled that "counsel may be substituted only where ‘good cause’ is shown" ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ), and we conclude that the "strategic disagreement between defendant and counsel concerning counsel's handling of [issues relating to defendant's competency to stand trial] was not a ‘conflict’ requiring substitution" ( People v. Banks, 265 A.D.2d 163, 163, 696 N.Y.S.2d 41 [1st Dept. 1999], lv denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381 [1999] ). We similarly conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that [defendant's trial] attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). In particular, " ‘the mistake of [trial] counsel with respect to [the] minimum sentence [available for a class D felony] does not rise to the level of ineffective assistance of counsel’ " ( People v. Fowler, 45 A.D.3d 1372, 1374, 845 N.Y.S.2d 599 [4th Dept. 2007], lv denied 9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206 [2008], quoting People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985] ). Notably, after defense counsel inaccurately stated that the minimum permissible sentence pursuant to Penal Law § 70.06(6)(c) for a conviction of a class D felony was four years rather than three years, the prosecutor immediately corrected the mistake.

Defendant's challenge to the legal sufficiency of the evidence in appeal No. 1 is preserved only in part because, in moving for a trial order of dismissal, defendant raised only some of the specific grounds raised on appeal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Jacobson, 60 A.D.3d 1326, 1327–1328, 876 N.Y.S.2d 259 [4th Dept. 2009], lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence provides a "valid line of reasoning and permissible inferences" that could lead a rational person to conclude, beyond a reasonable doubt ( People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), that defendant committed the offenses of attempted aggravated assault upon a police officer or a peace officer, attempted criminal possession of a weapon in the second degree, attempted robbery in the third degree, and attempted escape in the third degree. Specifically, with respect to the conviction of attempted aggravated assault upon a police officer or a peace officer, we conclude that the People established that the firearm was loaded and operable (see People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 [1985] ), through circumstantial evidence (see People v. Machado, 144 A.D.3d 1633, 1634–1635, 42 N.Y.S.3d 519 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ). We have reviewed defendant's remaining challenges to the legal sufficiency of the evidence with respect to the charges of attempted aggravated assault upon a police officer or a peace officer, attempted criminal possession of a weapon in the second degree, attempted robbery in the third degree, and attempted escape in the third degree, and we conclude that they are without merit. We further conclude that, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), the verdict with respect to those charges is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

We agree with defendant, however, that his conviction of attempted menacing a police officer or peace officer must be reversed because that offense is not a legally cognizable crime. As relevant here, Penal Law § 120.18 provides that "[a] person is guilty of menacing a police officer or peace officer when he or she intentionally places or attempts to place a police officer ... in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, ... pistol, ... or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer." Thus, according to the definition of menacing a police officer or peace officer set forth in the Penal Law, the attempt to commit the crime is already an element of the offense, and "there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result" ( People v. Schmidt, 76 Misc.2d 976, 978, 352 N.Y.S.2d 399 [Crim. Ct., Bronx County 1974] ; see People v. Tucker, 151 A.D.3d 1085, 1086, 58 N.Y.S.3d 461 [2d Dept. 2017] ; People v. Diaz, 146 Misc.2d 260, 264, 550 N.Y.S.2d 543 [Crim. Ct., Bronx County 1990] ; see also People v. Campbell, 72 N.Y.2d 602, 607, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ). Although defendant failed to raise this issue at trial, preservation is not required...