People v. Terborg

• Decision Date: 22 December 2017
• Docket Number: 944,KA 14–00643
• Citation: 156 A.D.3d 1320,67 N.Y.S.3d 730
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey J. TERBORG, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1320
67 N.Y.S.3d 730

The PEOPLE of the State of New York, Respondent,
v.
Jeffrey J. TERBORG, Defendant–Appellant.

944
KA 14–00643

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

Entered: December 22, 2017

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.

JEFFREY J. TERBORG, DEFENDANT–APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

MEMORANDUM AND ORDER

Memorandum:

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the fifth degree ( Penal Law § 165.40 ). We reject defendant's contention in his main and pro se supplemental briefs that Supreme Court (Doyle, J.) abused its discretion in disqualifying his assigned counsel upon being informed that the Public Defender's Office had represented various individuals who were potential prosecution witnesses in one of several other pending prosecutions against defendant (see People v. Watson, 26 N.Y.3d 620, 624–625, 26 N.Y.S.3d 504, 46 N.E.3d 1057 [2016] ; People v. Carncross, 14 N.Y.3d 319, 326–330, 901 N.Y.S.2d 112, 927 N.E.2d 532 [2010] ). We conclude that the court properly decided not to accept defendant's attempted waiver in these circumstances and instead chose to protect defendant's right to effective assistance of counsel in order to ensure a fair trial (see Watson, 26 N.Y.3d at 627, 26 N.Y.S.3d 504, 46 N.E.3d 1057 ). The court also appropriately considered the interest of judicial economy and the integrity of the criminal process in determining that defendant should be represented by one attorney for all of the pending prosecutions to avoid conflicting advice and potential conflicts of interest (see generally People v. Tineo, 64 N.Y.2d 531, 537, 490 N.Y.S.2d 159, 479 N.E.2d 795 [1985] ; People v. Gayle, 167 A.D.2d 927, 927, 562 N.Y.S.2d 288 [4th Dept. 1990], lv denied

67 N.Y.S.3d 732

77 N.Y.2d 838, 567 N.Y.S.2d 207, 568 N.E.2d 656 [1991] ).

We reject defendant's further contention in his main and pro se supplemental briefs that Supreme Court (Renzi, J.) abused its discretion in refusing to recuse itself from conducting the trial because it had presided over several prior criminal prosecutions of defendant and made negative comments about his character and criminality during one of those proceedings. "Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal" ( People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ). Here, there was no legal disqualification, and defendant otherwise made no showing that the court's alleged bias affected the result of the trial (see id. at 407, 521 N.Y.S.2d 663, 516 N.E.2d 200 ; People v. Nenni, 269 A.D.2d 785, 786, 704 N.Y.S.2d 405 [4th Dept. 2000], lv denied 95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241 [2000] ).

Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention in his main and pro se supplemental briefs that the verdict is against the weight of the evidence (see People v. Jackson, 66 A.D.3d 1415, 1416, 885 N.Y.S.2d 856 [4th Dept. 2009] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the...