BURNETT, BENNIE, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1420
KA 07-02075
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BENNIE BURNETT, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered September 18, 2007. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree and
criminal mischief in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]) and criminal mischief in the fourth degree (§ 145.00 [1]).
Defendant was convicted upon a retrial after we reversed the first
judgment of conviction based on an error in the jury charge (People v
Burnett, 41 AD3d 1201). We held in the prior appeal that County Court
did not err in refusing to suppress statements that defendant made to
the police but we noted that, “[i]n view of the fact that we [were]
granting a new trial,” defendant could seek to reopen the suppression
hearing to address inconsistencies in the testimony of the arresting
officer at the suppression hearing and at trial (id. at 1202). Prior
to the new trial, defendant again sought to suppress his statements
and further sought to suppress a pair of scissors that the police
obtained from his person upon his arrest. Rather than recalling any
witnesses, however, defendant submitted copies of the transcripts of
the trial testimony of the arresting officer and the suppression
hearing testimony of another officer.
The court granted the relief sought by defendant in part by
suppressing the statements, but defendant contends on appeal that the
court erred in also refusing to suppress the scissors. We reject that
contention. A police officer found the scissors when he conducted a
pat-down search of defendant at the time of his arrest, and we agree
with the court that the officer had the requisite probable cause for
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KA 07-02075
the arrest (see People v De Bour, 40 NY2d 210, 223). At the time of
defendant’s arrest, the officer knew that a residence had been
burglarized inasmuch as the burglar alarm was activated and he saw a
broken window and an open door at the back of the residence. He heard
the suspect running through the bushes in the backyard, heading
southwest, and within two minutes he found defendant walking down a
driveway at a location that was one block away and southwest of the
location of the burglarized residence. Defendant had grass stains on
his clothing, his shoes were wet from the dew on the grass, and he was
sweating. The officer questioned defendant, who gave statements that
were not credible concerning where he had been and where he was going.
Based on all of that information, the officer had probable cause to
arrest defendant, and the scissors were properly seized during the
lawful pat down pursuant to the arrest (see People v Troche, 185 AD2d
368, 369, lv denied 80 NY2d 977; People v Kelland, 171 AD2d 885, 886,
lv denied 77 NY2d 997; cf. People v Ayers, 85 AD3d 1583).
Defendant next contends that he was denied effective assistance
of counsel based on defense counsel’s failure to recall the witnesses
from the first suppression hearing to testify, and based on defense
counsel’s having allowed defendant to appear in jail garb for trial.
With respect to the suppression hearing testimony, we fail to
comprehend the basis for defendant’s contention inasmuch as the court
in fact suppressed the statements. In any event, defendant failed to
“demonstrate the absence of strategic or other legitimate
explanations” for defense counsel’s failure to recall the witnesses
(People v Rivera, 71 NY2d 705, 709). Indeed, if recalled to the
stand, the arresting officer may have explained the seeming
inconsistencies between his testimony at the first suppression hearing
and the trial regarding the circumstances when defendant made his
statements, thus negating the basis for defendant’s request for
suppression of those statements. With respect to defendant’s attire
at the first day of the trial, defense counsel noted on the record
that he had contacted defendant about wearing appropriate clothing to
court and had told defendant to contact him if he needed anything, and
defendant did not respond. Defense counsel also spoke with
defendant’s mother about the need for defendant to wear appropriate
clothing at trial, and she assured him that either she or defendant’s
brother would take care of the matter of the clothing. Thus, the
record establishes that defense counsel took appropriate steps to
ensure that defendant was dressed appropriately for trial. Although
defendant contends that defense counsel was ineffective for failing to
move for an adjournment upon observing that defendant was not
appropriately dressed, it is well settled that a defendant is not
denied effective assistance of counsel for failing to make a motion
“that has little or no chance of success” (People v Stultz, 2 NY3d
277, 287, rearg denied 3 NY3d 702).
We reject defendant’s further contention that the court erred in
summarily denying his request for a new attorney. A court should
grant a defendant’s request for new counsel when a defendant
demonstrates good cause for the substitution (see People v Linares, 2
NY3d 507, 510). A court “must carefully evaluate seemingly serious
requests in order to ascertain whether there is indeed good cause for
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KA 07-02075
substitution” (People v Sides, 75 NY2d 822, 824), and may not
summarily dismiss a request for new counsel but must make “some
minimal inquiry” (id. at 825). Here, when defendant requested a new
attorney, the court made the requisite minimal inquiry by asking
defendant for the reason for his request, but defendant was unable to
give one. Contrary to defendant’s contention, he never renewed his
request for new counsel.
Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Finally, the sentence is not unduly harsh or severe.
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court