People v. Gilchrist

• Citation: 239 A.D.2d 306,658 N.Y.S.2d 269
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory GILCHRIST, Defendant-Appellant.
• Decision Date: 29 May 1997
• Court: New York Supreme Court Appellate Division

Page 269

658 N.Y.S.2d 269

239 A.D.2d 306

The PEOPLE of the State of New York, Respondent, v. Gregory GILCHRIST, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 29, 1997.

Lisa H. Blitman, for Respondent.

Lloyd Epstein, for Defendant-Appellant.

Before ROSENBERGER, J.P., and ELLERIN, RUBIN, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered April 24, 1995, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.

Defendant's claim that the court refused his request to submit petit larceny as a lesser included offense of robbery is unsupported by the record, which reveals that defendant withdrew that request by accepting the court's proposition that a reasonable view of the evidence warranted submission of attempted, rather than completed, petit larceny. Only the charges ultimately submitted by the court could have been sustained by a reasonable view of the evidence.

Since defendant merely alluded to some undefined deficiency in the section of the court's instructions to the jury wherein the court explained the relationship between the trial evidence and the elements of the crimes charged, defendant failed to preserve his present claims in that regard (People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Borrero, 52 N.Y.2d 952, 437 N.Y.S.2d 965, 419 N.E.2d 868), and we decline to review them in the interest of justice. Were we to review them, we would find that the court appropriately applied the law to the facts (see, People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610).

Defendant was not deprived of his right to counsel at sentencing. The court properly found that, by brutally assaulting his attorney, the fourth one appointed by the court, on the original sentencing date, defendant forfeited his right to counsel (see, United States v. McLeod, 11th Cir., 53 F.3d 322, 325; United States v. Jennings, 855 F.Supp. 1427, affd. 3d Cir., 61 F.3d 897; cf., Matter of Legal Aid Socy. v. Rothwax, 69 A.D.2d 801, 415 N.Y.S.2d 432; see also, People v. McElveen, 234 A.D.2d 228, 651 N.Y.S.2d 977). In any event, the attorney appeared voluntarily at defendant's sentencing and provided him with meaningful representation. We have reviewed defendant's remaining arguments on this subject and find them to be without merit.