People v. Hunter

• Decision Date: 26 April 2019
• Docket Number: KA 16–02167,1316
• Citation: 99 N.Y.S.3d 551,171 A.D.3d 1534
• Parties: The PEOPLE of the State of New York, Respondent, v. Sean HUNTER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1534
99 N.Y.S.3d 551

The PEOPLE of the State of New York, Respondent,
v.
Sean HUNTER, Defendant-Appellant.

1316
KA 16–02167

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

Entered: April 26, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

99 N.Y.S.3d 553

MEMORANDUM AND ORDER

171 A.D.3d 1535

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), defendant contends that County Court deprived him of his right to counsel of his own choosing when the court compelled his retained attorney to continue representing him even after the attorney informed the court, four days before trial, that defendant "fired" the attorney. Defendant further contends that the issue concerning counsel is a " ‘structural error’ " that does not require preservation. We need not resolve defendant's latter contention inasmuch as we conclude that defendant preserved his substantive contention for our review even though he did not personally request any substitution of counsel (cf. People v. Harris, 151 A.D.3d 1720, 1720, 55 N.Y.S.3d 844 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ; People v. Youngblood, 294 A.D.2d 954, 955, 742 N.Y.S.2d 762 [4th Dept. 2002], lv denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12 [2002] ). With respect to the merits of defendant's substantive contention, we conclude that defendant's constitutional rights were not violated. "Although a defendant has the constitutionally guaranteed right to be defended by counsel of his [or her] own choosing, this right is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings" ( People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980] ). Here, "defendant had ample opportunity to retain [other] counsel ..., and he failed to demonstrate that [substitution of counsel on the eve of trial] was necessitated by forces beyond his control and was not a dilatory tactic" ( People v. Allison, 69 A.D.3d 740, 741, 892 N.Y.S.2d 516 [2d Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010] ). Moreover, we conclude that the court properly determined "that the reasons cited by counsel did not warrant his withdrawal from representation and that the court, in denying [counsel's] request, properly ‘balance[d] the need for the expeditious and orderly administration

171 A.D.3d 1536

of justice against the legitimate concerns of counsel’ " ( Harris, 151 A.D.3d at 1721, 55 N.Y.S.3d 844 ).

Defendant further contends that the court erred in denying his pretrial request to admit in evidence at trial a recording of an interview conducted by police officers with an individual who had passed away before trial. We reject that contention. The statements made by the individual constituted hearsay and did not fall within any exception (see generally People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226 [1987] ). Contrary to defendant's contention, the statements do not fall within an exception to the hearsay rule as statements against penal interest inasmuch as the individual was not aware, at the time he made his statements, that they were "contrary to his penal interest" ( id. at 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226 ). In his interview with police investigators, the individual repeatedly denied any knowledge of or involvement in the crimes committed by defendant. The investigators, who had obtained contradictory information

99 N.Y.S.3d 554

from other witnesses, informed the individual that, if he continued with his denials, the investigators could charge him with hindering prosecution. The individual maintained his ignorance of the crimes and, ultimately, was so charged. It is that threat and the resultant...