People v. Orama

• Decision Date: 31 January 2018
• Docket Number: 2013–10581,Ind.No. 430/11
• Citation: 70 N.Y.S.3d 249,157 A.D.3d 967
• Parties: The PEOPLE, etc., respondent, v. David ORAMA, appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 967
70 N.Y.S.3d 249

The PEOPLE, etc., respondent,
v.
David ORAMA, appellant.

2013–10581
Ind.No. 430/11

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

Argued November 9, 2017
January 31, 2018

Paul Skip Laisure, New York, N.Y. (Anna Pervukhin and Lisa Napoli of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Robert Collini, J.), rendered June 28, 2013, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant's contention that the evidence was legally insufficient to support his conviction of burglary in the second degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Cooper , 146 A.D.3d 898, 898, 44 N.Y.S.3d 773 ; People v. Bibbes , 98 A.D.3d 1267, 1267–1268, 951 N.Y.S.2d 607 ). In any event, viewing the evidence in the light most favorable to the

70 N.Y.S.3d 251

prosecution (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 of that crime beyond a reasonable doubt (see People v. Van Praag , 153 A.D.3d 559, 560, 60 N.Y.S.3d 224 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to burglary in the second degree was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his request for an adjournment, which request was made on the ground that he was suffering from a back ailment for which he was taking medication (see People v. Woolson , 122 A.D.3d 1353, 1354, 997 N.Y.S.2d 865 ; see generally People v. O'Daniel , 105 A.D.3d 1144, 1146, 963 N.Y.S.2d 737, affd 24 N.Y.3d 134, 996 N.Y.S.2d 580, 21 N.E.3d 209 ). " ‘The determination whether to grant an adjournment is committed to the sound discretion of the ... court,’ and ‘absent a showing of prejudice, the court's denial of a request for an adjournment will not be disturbed’ " ( People v. Struss , 79 A.D.3d 773, 774, 912 N.Y.S.2d 636, quoting People v. McRae , 62 A.D.3d 723, 724, 879 N.Y.S.2d 493 ; see People v. Spears , 64 N.Y.2d 698, 699–700, 485 N.Y.S.2d 521, 474 N.E.2d 1189 ). Here, the defendant did not indicate that his back ailment or the medication he was taking made him unable to understand or follow the proceedings. Moreover, the court's observation of the defendant and knowledge of his efforts to delay the case on prior occasions gave the court ample reason to deny the request (see generally People v. Woolson , 122 A.D.3d at 1354, 997 N.Y.S.2d 865 ; People v. Doyle , 82 A.D.3d 564, 564, 918 N.Y.S.2d 482 ). To the extent the defendant contends that the court's decision deprived him of his right to be present at all material stages of trial because he fell asleep during a pretrial proceeding shortly after his request for an adjournment was denied (see generally People v. Struss , 79 A.D.3d at 774, 912 N.Y.S.2d 636 ), that contention is without merit. The pretrial proceeding concerned issues of law and, as such, did not implicate his peculiar factual knowledge or otherwise present the potential for his meaningful participation

(see People v. Fabricio , 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 ; People v. Singson , 40 A.D.3d 1015, 1017, 837 N.Y.S.2d 687 ). Accordingly, the defendant's due process right to be present was not implicated (see People v. Fabricio , 3 N.Y.3d at 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 ; People v. Rodriguez , 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293 ).

Nevertheless, a new trial is required because the defendant was deprived of his right to the effective assistance of counsel. " ‘[W]hen reviewing claims of ineffective assistance of counsel, care must be taken to avoid confusing true ineffectiveness with mere losing tactics. The performance of counsel must be viewed without the benefit of hindsight and if counsel provided meaningful representation in the context of the evidence, the law, and the circumstances of the particular case, the constitutional requirement will have been met’ " (

...