CLYDE, RAYMOND, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
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PRESENT: SCUDDER, P.J., SCONIERS, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RAYMOND CLYDE, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Robert B.
Wiggins, A.J.), rendered March 24, 2008. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree (two
counts), unlawful imprisonment in the first degree and promoting
prison contraband in the first degree. The judgment was reversed by
order of this Court entered April 30, 2010 in a memorandum decision
(72 AD3d 1538), and the People on June 3, 2010 were granted leave to
appeal to the Court of Appeals from the order of this Court, and the
Court of Appeals on November 22, 2011 reversed the order and remitted
the case to this Court for consideration of facts and issues raised
but not determined on the appeal to this Court (___ NY3d ___ [Nov. 22,
2011]).
Now, upon remittitur from the Court of Appeals and having
considered the facts and issues raised but not determined on appeal to
this Court,
It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: In one of two prior appeals involving the instant
defendant, we reversed the judgment convicting defendant following a
jury trial of, inter alia, two counts of assault in the second degree
(Penal Law § 120.05 [7]), and we granted defendant a new trial based
upon our conclusion that “County Court erred in failing to articulate
a reasonable basis on the record for its determination to restrain
defendant in shackles during the trial” (People v Clyde [appeal No.
1], 72 AD3d 1538, 1538-1539). In the second of the two appeals, the
People appealed from an order insofar as it granted that part of
defendant’s motion for a trial order of dismissal with respect to
count one of the indictment, charging defendant with attempted rape in
the first degree (§§ 110.00, 130.35 [1]). The court had reserved
decision on the motion but ultimately granted it pursuant to CPL
290.10 (1), and we concluded that the court properly granted that part
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of defendant’s motion. The Court of Appeals reversed our orders in
both appeals and remitted the matter to this Court to consider
defendant’s contentions raised but not addressed in the first appeal
(People v Clyde, ___ NY3d ___ [Nov. 22, 2011]). With respect to the
second appeal, the Court of Appeals remitted the matter to County
Court for sentencing on the conviction of attempted rape. We thus now
address only defendant’s remaining contentions in the first appeal.
Defendant, while he was an inmate at Auburn Correctional
Facility, attacked a civilian employee as she was walking in a
corridor of the correctional facility. Defendant assaulted another
civilian employee who ran to the scene after hearing the woman’s cries
for help.
Contrary to defendant’s contention in his main and pro se
supplemental briefs, the court did not violate his constitutional
rights by permitting him to represent himself at trial. In his pro se
supplemental brief, defendant contends that he was required to
represent himself because he was told by his attorney that his
attorney was not prepared for trial, and the court denied defendant’s
request for an adjournment. Defense counsel, however, denied that he
told defendant that he was not prepared for trial. Notably, in
requesting an adjournment, defendant asserted that the District
Attorney’s term of office would expire in a few weeks and that the
current District Attorney therefore would not try the case at an
adjourned date. Where, as here, the defendant’s request for an
adjournment sought a tactical advantage, the court properly denied the
request (see generally People v Grimes, 53 AD3d 1055, 1056, lv denied
11 NY3d 789). The record establishes that the court conducted an
exceedingly thorough and searching inquiry to ensure that defendant’s
waiver of the right to be represented by counsel was knowing,
voluntary and intelligent (see People v Providence, 2 NY3d 579, 582).
Contrary to defendant’s further contention in his main brief, the
court did not err in sentencing him as a persistent violent felony
offender (see Penal Law § 70.08 [1] [a]). Defendant, who has been
imprisoned since 1996, thus tolling the 10-year limitation period (see
§ 70.04 [1] [b] [iv], [v]), challenged only one of the two prior
violent felony convictions alleged by the People to be predicate
violent felony offenses, i.e., the conviction of robbery in the second
degree. We conclude that the People proved beyond a reasonable doubt
that defendant was convicted upon his plea of guilty of robbery in the
second degree, a violent felony offense (see § 70.02 [1] [b]), on June
4, 1991 (see People v Williams, 30 AD3d 980, 983, lv denied 7 NY3d
852). In addition to the certificate of conviction, which is
presumptive evidence of the facts stated therein (see CPL 60.60 [1]),
the People presented a certified fingerprint comparison establishing
that defendant’s fingerprints records and defendant’s fingerprints
taken in connection with the arrest for that offense were identical.
The sentence is not unduly harsh or severe. We have reviewed
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defendant’s remaining contention in his pro se supplemental brief and
conclude that it is without merit.
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court