People v. Jones

• Decision Date: 04 March 1991
• Citation: 567 N.Y.S.2d 158,171 A.D.2d 691
• Parties: The PEOPLE, etc., Respondent, v. Donnell JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 158

567 N.Y.S.2d 158

171 A.D.2d 691

The PEOPLE, etc., Respondent, v. Donnell JONES, Appellant.

Supreme Court, Appellate Division Second Department.

March 4, 1991.

Richard L. Herzfeld, New York City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (David Heller, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, SULLIVAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered January 3, 1989, convicting him of criminal possession of stolen property in the third degree and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the People failed to prove his guilt of the criminal possession of stolen property charge beyond a reasonable doubt as the People's valuation expert was not properly qualified and the expert's testimony that the Isuzu truck was valued in excess of $9,000 was based upon facts not in evidence. Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5]. Qualification of a witness as an expert is a determination within the sound discretion of the trial court and its determination will not be disturbed in the absence of serious mistake or an improvident exercise of discretion (see, People v. Greene, 153 A.D.2d 439, 449-450, 552 N.Y.S.2d 640, cert. denied, --- U.S. ----, 111 S.Ct. 363, 112 L.Ed.2d 326). We find that the trial court providently exercised its discretion and qualified the witness as an expert based on his "[l]ong observation and actual experience" as a car and truck dealer (see, People v. Greene, supra, at 450, 552 N.Y.S.2d 640). Moreover, we find that the expert's valuation was based on evidence in the record (see, People v. Jones, 73 N.Y.2d 427, 430, 541 N.Y.S.2d 340, 539 N.E.2d 96).

Also without merit is the defendant's contention that the trial court's refusal to relieve assigned counsel deprived him of his right to the effective assistance of counsel and a fair trial. The defendant premises his contention on the fact that defense counsel failed to advise him of his right to appear before the Grand Jury (see, CPL 190.50). It is settled law, however, that court-appointed counsel will not be removed except for good cause shown (see, People v. Sawyer, 57 N.Y.2d 12, 18-19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024; People v. Slaughter, 162 A.D.2d 640, 556 N.Y.S.2d 955). We find that the trial court properly concluded that the defendant's notification on the eve of trial, four months after the Grand Jury hearing, was untimely (see, CPL 190.50[5][c] and the defendant waived his statutory right to testify (see, People v. LaBounty, 127 A.D.2d 989, 512 N.Y.S.2d 950). "Even assuming the truth of the defendant's allegations, his counsel's failure to comply with his desire to testify would not, standing alone, amount to a denial of effective assistance of counsel" (see, People...