People v Sims

People v Sims 2013 NY Slip Op 02178 Decided on April 2, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 2, 2013
Mazzarelli, J.P., Moskowitz, DeGrasse, Feinman, Clark, JJ.
9675 1406/09

[*1]The People of the State of New York, Respondent,

v

Quavas Sims, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Susan H. Salomon of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Peter D.
Coddington of counsel), for respondent.

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 NY3d 342, 348-349 [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 NY2d 531, 535-536 [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 NY2d 155, 161 [1992]). The prosecutor's suggestion that the court proceed with caution did not satisfy the preservation requirement (see CPL 470.05[2]; People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Colon, 46 AD3d 260, 263 [1st Dept 2007]).

Defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]), and his pro se arguments on this issue are without
merit. Defendant's remaining pro se claims are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. [*2]

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 2, 2013

CLERK