People v. Sims

• Decision Date: 02 April 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Quavas SIMS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 415
963 N.Y.S.2d 23
2013 N.Y. Slip Op. 02178

The PEOPLE of the State of New York, Respondent,
v.
Quavas SIMS, Defendant–Appellant.

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

April 2, 2013.

Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

[963 N.Y.S.2d 24]

Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, FEINMAN, CLARK, JJ.

[105 A.D.3d 416]Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 8, 2010, convicting defendant, after a nonjury trial, of rape in the first degree, criminal sexual act in the first degree, assault in the third degree (two counts), menacing in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 25 years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the court's credibility determinations, including its assessment of the victim's delay in reporting.

Defendant did not preserve his claim that the court deprived him of the right to continued representation by assigned counsel with whom he had allegedly formed an attorney-client relationship ( see People v. Tineo, 64 N.Y.2d 531, 535–536, 490 N.Y.S.2d 159, 479 N.E.2d 795 [1985] ), and we decline to review it in the interest of justice. During a colloquy over whether it would be appropriate for defendant's assigned counsel to stay on the case, defendant never told the court he wanted to continue being represented by this attorney. On the contrary, defendant expressed his dissatisfaction with the attorney, and at the end of the colloquy defendant stated his acceptance of the court's decision to take the attorney off the case. Furthermore, neither defendant nor his counsel ever raised any constitutional claim. The record does not support defendant's assertion that a protest would have been futile ( compare People v. Mezon, 80 N.Y.2d 155, 161, 589 N.Y.S.2d 838, 603 N.E.2d 943 [1992] ). The prosecutor's suggestion that the court proceed with caution did not satisfy the preservation requirement ( seeCPL...