THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,V MICHAEL T. CHESS, DEFENDANT-APPELLANT.(APPEAL NO. 1.)TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OFCOUNSEL), FOR DEFENDANT-APPELLANT.SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OFCOUNSEL), FOR RESPONDENT.Appeal from a judgment of the Supreme Court, Monroe County (AlexR. Renzi, J.), rendered December 11, 2013. The judgment convicteddefendant, upon a jury verdict, of rape in the first degree (threecounts) and robbery in the first degree.It is hereby ORDERED that the judgment so appealed from isunanimously affirmed.Memorandum: In appeal No. 1, defendant appeals from a judgmentconvicting him upon a jury verdict of three counts of rape in thefirst degree (Penal Law § 130.35 [1]) and robbery in the first degree(§ 160.15 [3]) and, in appeal No. 2, defendant appeals from a judgmentconvicting him upon the same jury verdict of two counts of rape in thefirst degree (§ 130.35 [1]), menacing in the second degree (§ 120.14[1]), and two counts of petit larceny (§ 155.25). We note at theoutset that defendant’s contentions apply to both appeals unlessspecified otherwise herein. We reject defendant’s contention thatSupreme Court abused its discretion in refusing to recuse itself (seePeople v Hazzard, 129 AD3d 1598, 1598 [4th Dept 2015],lv denied26NY3d 968 [2015]). Where, as here, “recusal is sought based upon‘impropriety as distinguished from legal disqualification, the judge .. . is the sole arbiter’ ” of whether to grant such a motion (People vMoreno, 70 NY2d 403, 406 [1987]). Here, defendant made no showingthat the court displayed actual bias in its evidentiary rulings (seePeople v McCray, 121 AD3d 1549, 1551 [4th Dept 2014],lv denied25NY3d 1204 [2015]). We further reject defendant’s contention that thecourt’s remarks during the first trial, which ended in a mistrial,were indicative of bias against defendant that carried over to thesecond trial (see generally People v Walker, 100 AD3d 1522, 1523 [4thDept 2012],lv denied20 NY3d 1104 [2013]).Defendant next contends that the court abused its discretion indenying his requests for substitution of counsel. We reject thatcontention. The determination “[w]hether counsel is substituted iswithin ‘the discretion and responsibility’ of the trial judge . . . ,and a court’s duty to consider such a motion is invoked only where adefendant makes a ‘seemingly serious request[]‘ ” (People v Porto, 16NY3d 93, 99-100 [2010];see People v Dodson, 30 NY3d 1041, 1042[2017]). Defendant’s first request for new counsel was based on broadcomplaints that were insufficient to trigger the court’s duty toinquire (see People v Jones, 149 AD3d 1576, 1577-1578 [4th Dept 2017],lv denied29 NY3d 1129 [2017];People v Correa, 145 AD3d 1640, 1640-1641 [4th Dept 2016]). In any event, we conclude that the courtconducted the requisite “minimal inquiry” to determine whethersubstitution of counsel was warranted (People v Sides, 75 NY2d 822,825 [1990]). The court “allowed defendant to air his concerns aboutdefense counsel, and . . . reasonably concluded that defendant’s vagueand generic objections had no merit or substance” (People v Linares, 2NY3d 507, 511 [2004]), and “properly concluded that defense counselwas ‘reasonably likely to afford . . . defendant effective assistance’of counsel” (People v Bradford, 118 AD3d 1254, 1255 [4th Dept 2014],lv denied24 NY3d 1082 [2014]). Defendant’s second and third requestsfor new counsel ” ‘[a]t most, . . . evinced disagreements with counselover strategy . . . , which were not sufficient grounds forsubstitution’ ” (Bradford, 118 AD3d at 1255;see People v Jones, 107AD3d 1584, 1585 [4th Dept 2013],lv denied22 NY3d 1088 [2014],reconsideration denied23 NY3d 1021 [2014]). For example, defendantcomplained that defense counsel failed to make a bail application,despite the fact that defendant committed many of the crimes chargedin appeal No. 2 when he was out on bail while a retrial was pendingfor the charges in appeal No. 1. The court noted that it told counseland defendant many times that any bail application would have beenfutile.We reject defendant’s contention that the court erred inpermitting him to proceed pro se at the start of the second trial. Inorder for a defendant’s waiver of the right to counsel to be knowing,voluntary, and intelligent, the court must “undertake a searchinginquiry designed to insur[e] that the defendant [is] aware of thedangers and disadvantages of proceeding without counsel” (People vCrampe, 17 NY3d 469, 481 [2011] [internal quotation marks omitted]),and we conclude that the court conducted that inquiry beforedetermining that the waiver was knowing, voluntary, and intelligent.Contrary to defendant’s contention, his request to proceed pro se wasnot equivocal simply because it was “preceded by an unsuccessfulrequest for new counsel” (People v Lewis, 114 AD3d 402, 404 [1st Dept2014];see People v Malone, 119 AD3d 1352, 1354 [4th Dept 2014],lvdenied24 NY3d 1003 [2014]). We reject defendant’s further contentionthat the court erred in failing to grant him an adjournment to givehim more time to prepare for the trial (see People v Hickman, 177 AD2d739, 739 [3d Dept 1991],lv denied79 NY2d 920 [1992]).Contrary to defendant’s contention, the court properly admittedevidence of certain alleged bad acts by defendant that were relevantto his intent to commit the crimes herein (see generally People vCass, 18 NY3d 553, 561-562 [2012]). Defendant’s contention that thecourt should have limited theMolineuxevidence to the crimes chargedin appeal No. 1 is not preserved for our review (see generally Peoplev Williams, 107 AD3d 1516, 1516 [4th Dept 2013],lv denied21 NY3d1047 [2013]), as is his contention that the court failed to issue anorder on the People’s motion for consolidation, and we decline toexercise our power to review those contentions as a matter ofdiscretion in the interest of justice (seeCPL 470.15 [6] [a]).Contrary to defendant’s contention, the court’s failure to issue anorder on the consolidation motion does not constitute a mode ofproceedings error (see generally People v Thomas, 28 AD3d 239, 239[1st Dept 2006],lv denied6 NY3d 898 [2006];People v Olds, 269 AD2d849, 849 [4th Dept 2000]).We reject defendant’s contention that the court abused itsdiscretion in denying his motion for a mistrial after a sworn jurorwas removed, upon defendant’s consent, as grossly unqualified.Although the court was incorrect in believing that granting the motionwould have led to the application of double jeopardy (see People vFerguson, 67 NY2d 383, 388 [1986]), we reject defendant’s contentionthat this was the court’s sole ground for denying the motion. Rather,the record establishes that the court properly concluded that therewas no basis for a mistrial inasmuch as the trial could proceed withjust one alternate juror (seeCPL 270.30 [1];People v Ashley, 145AD2d 782, 783 [3d Dept 1988]).Defendant contends that the court erred in sua sponte exercisinga peremptory challenge on defendant’s behalf to excuse a prospectivejuror. Upon our review of the record, we conclude that defendant, whowas proceeding pro se at the time, in fact impliedly requested thatchallenge after consulting with standby counsel. We rejectdefendant’s further contention that the court abused its discretion insua sponte excusing a juror for cause. The court’s questions showedthat the prospective juror had “a state of mind that [was] likely topreclude him from rendering an impartial verdict based upon theevidence adduced at the trial” (CPL 270.20 [1] [b];see People vVargas, 88 NY2d 363, 379 [1996]).With respect to appeal No. 1, we reject defendant’s contentionthat the court erred in failing to suppress his statements to a policeofficer. We agree with the court that defendant was not in custodywhere, as here, he was not handcuffed, he agreed to sit in the back ofthe police vehicle, and the investigatory questioning was brief (seePeople v Davis, 229 AD2d 969, 969-970 [4th Dept 1996],lv denied88NY2d 1020 [1996]). With respect to appeal No. 2, we rejectdefendant’s contention that the conviction of one of the two counts ofboth rape in the first degree and petit larceny is not supported bylegally sufficient evidence (see People v Bleakley, 69 NY2d 490, 495[1987]). Furthermore, viewing the evidence in light of the elementsof those crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict in appeal No. 2 is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at495).Finally, we conclude that the sentence in each appeal is notunduly harsh or severe.Entered: June 8, 2018 Mark W. BennettClerk of the Court
