People v. Gibson

• Decision Date: 12 November 2021
• Docket Number: 728,KA 17-01517
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine GIBSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1335
156 N.Y.S.3d 622

The PEOPLE of the State of New York, Respondent,
v.
Jermaine GIBSON, Defendant-Appellant.

728
KA 17-01517

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

Entered: November 12, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

156 N.Y.S.3d 624

MEMORANDUM AND ORDER

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 burglary in the second degree ( Penal Law § 140.25 [2] ). We affirm.

Defendant contends that County Court (Randall, J.) erred in denying his request for new counsel before his first trial, which ended in a mistrial. We conclude, however, that defendant abandoned that request when he proceeded to the second trial, before a different judge (Castro, A.J.), while still being represented by the same attorney (see People v. Hampton , 113 A.D.3d 1131, 1132, 977 N.Y.S.2d 859 [4th Dept. 2014], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014], reconsideration denied 23 N.Y.3d 1062, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ; People v. Bennett , 94 A.D.3d 1570, 1571, 943 N.Y.S.2d 371 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ; see also People v. Crosby , 195 A.D.3d 1602, 1604, 149 N.Y.S.3d 729 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 436, 175 N.E.3d 442, 461, 462 [2021]).

Defendant contends that the evidence is legally insufficient to support the conviction because the People failed to establish the element of identity. We reject that contention. The presence of defendant's fingerprint on an item that was moved in the course of the burglary, together with the victim's testimony that she did not know defendant, provided a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant was the burglar ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant also contends that the People failed to establish that his statements to the police were voluntary because the police failed to video record his interrogation and thus that the court erred in refusing to suppress those statements. We reject that contention. There was no statutory requirement that the police record the interrogation, and it is well settled that due process does not require that the police record interrogations (see People v. Durant , 26 N.Y.3d 341, 348-349, 23 N.Y.S.3d 98, 44 N.E.3d 173 [2015] ). We conclude that the People proved beyond a reasonable doubt that defendant's statements were not products of coercion but rather were the "result of a free and unconstrained choice by defendant" ( People v. Buchanan , 136 A.D.3d 1293, 1294, 23 N.Y.S.3d 788 [4th Dept. 2016], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016] [internal quotation marks omitted]).

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