People v. Fudge

• Citation: 2013 N.Y. Slip Op. 01659,104 A.D.3d 1169,960 N.Y.S.2d 792
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony FUDGE, Defendant–Appellant.
• Decision Date: 15 March 2013
• Court: New York Supreme Court Appellate Division

104 A.D.3d 1169
960 N.Y.S.2d 792
2013 N.Y. Slip Op. 01659

The PEOPLE of the State of New York, Respondent,
v.
Anthony FUDGE, Defendant–Appellant.

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

March 15, 2013.

Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.

Anthony Fudge, Defendant–Appellant Pro Se.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.

[960 N.Y.S.2d 793]

MEMORANDUM:

[104 A.D.3d 1170]On appeal from a judgment convicting him upon a jury verdict of, inter alia, assault in the second degree (Penal Law § 120.05[3] ), defendant contends that he was denied effective assistance of counsel. We reject that contention. While defense counsel need not support a defendant's pro se motion for the assignment of new counsel, a defendant is denied the right to counsel when defense counsel becomes a witness against the defendant by taking a position adverse to the defendant in the context of such a motion ( see e.g. People v. Kirkland, 68 A.D.3d 1794, 1795, 892 N.Y.S.2d 842;People v. Okolo, 35 A.D.3d 1272, 1273, 825 N.Y.S.2d 391,lv. denied8 N.Y.3d 925, 834 N.Y.S.2d 516, 866 N.E.2d 462). Here, however, the brief defense of her own performance by defendant's attorney did not create a prejudicial conflict ( see Okolo, 35 A.D.3d at 1273, 825 N.Y.S.2d 391;People v. Walton, 14 A.D.3d 419, 420, 788 N.Y.S.2d 107,lv. denied5 N.Y.3d 796, 801 N.Y.S.2d 816, 835 N.E.2d 676). Defendant failed to preserve for our review his further contention that he was deprived of his right to a fair trial because the court improperly denigrated defense counsel in the presence of the jury ( see People v. Charleston, 56 N.Y.2d 886, 887–888, 453 N.Y.S.2d 399, 438 N.E.2d 1114). In any event, we conclude that defendant's contention is without merit ( cf. People v. Lynch, 60 A.D.3d 1479, 1481, 875 N.Y.S.2d 730,lv. denied12 N.Y.3d 926, 884 N.Y.S.2d 708, 912 N.E.2d 1089).

With respect to defendant's challenge to the severity of the sentence, we note that, to the extent defendant contends that he was improperly penalized for asserting his right to a trial, that contention is not preserved for our review ( see People v. Griffin, 48 A.D.3d 1233, 1236–1237, 851 N.Y.S.2d 808,lv. denied10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86;People v. Irrizarry, 37 A.D.3d 1082, 1083, 829 N.Y.S.2d 351,lv. denied8 N.Y.3d 946,...