People v. Dandridge

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered February 8, 1999, convicting defendant, after a jury trial, of five counts of offering a false instrument for filing and one count of attempted grand larceny in the third degree, and sentencing him to concurrent terms of six months on each count, affirmed.

After being permitted to represent himself, defendant indicated on two occasions in late September 1998 that he was trying to hire a particular attorney to represent him at trial. On October 6, 1998, defendant asked for an adjournment to October 30 so that he could try and obtain the funds necessary to hire the attorney. Although the court granted the adjournment, it warned defendant that the case would go forward on October 30 even if defendant did not have counsel. Nonetheless, when a person in the audience on October 30 stated that the Moorish Science Temple, of which defendant was a member, would provide defendant with an attorney and defendant stated that he would need between four and six weeks to obtain a lawyer, the court granted an adjournment to December 7. On that date, the court denied defendant’s motion to be represented by a lawyer whose license to practice law had been suspended and adjourned the case to December 16. On that date, defendant said that an attorney named George Lewis had said he would be appearing in court that day. When Mr. Lewis did not appear after a second call, the court adjourned the case to December 18 *331and directed defendant to inform his attorney that the trial would start that day. In addition, the court expressly warned defendant that the adjournment was “the last adjournment for the defense.” On December 18, however, defendant appeared with an attorney, Sabrina Shraff, who immediately requested an adjournment. The court denied that request and jury selection commenced with defendant representing himself.

Under these circumstances, defendant’s claim that the trial court abused its discretion by refusing the request for an adjournment on December 18 is meritless (see People v Arroyave, 49 NY2d 264, 271-272 [1980] [a defendant’s request to substitute counsel made on the eve of trial may be denied if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time, and that when a defendant has been given such an opportunity, “it is incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his control and is not simply a dilatory tactic”]). Here, defendant was given more than a reasonable opportunity to retain counsel of his choosing and fell far short of demonstrating that the December 18 request was not a dilatory tactic.

Neither prior to nor during the trial did defendant ever contest venue with respect to any of the counts of the indictment. Accordingly, defendant’s appellate claim that with respect to three counts the People failed to prove, pursuant to GPL 20.40 (2) (c), that his conduct had a particular effect on New York County has been waived (see People v Greenberg, 89 NY2d 553, 556 [1997] [“(f)ailure to request a jury charge on venue . . . amounts to waiver”]; People v Lowen, 100 AD2d 518, 519 [1984], lv denied 62 NY2d 808 [1984] [issue of venue “was waived by the failure to raise the point by pretrial motion”]). Similarly unavailing is defendant’s claim that the trial court failed to make appropriate inquiry of a sworn juror who had approached the court and indicated that she did not know if she could be fair and impartial in light of something the juror did not want to speak about in open court. At no point did defendant object to the inquiry that the trial court did make or request additional inquiry. Accordingly, his appellate claim is not preserved for review (see People v Hicks, 6 NY3d 737, 739 [2005] [no question of law regarding claimed inadequacy of trial court’s inquiry of sworn juror preserved for review “(i)n the absence of a protest to the scope or intensity of the court’s inquiry”]), and we decline to review it in the interest of justice.

Although defendant presented no defense and no evidence on his own behalf, the prosecutor, during the course of his summa*332tion, referred to the shifting theories defendant had advanced in the so-called affidavits of facts he submitted with his W-4’s and amended returns on the nontaxability of his wages as a New York City correction officer and told the jury that “if the defendant believed any of these things, . . . even a mistaken belief as to the law, as Judge Wetzel will instruct you, would not be a defense for him.” Defendant did not object to this contention by the prosecutor or to the portion of the trial court’s charge to the jury in which the court instructed the jury that “a person is not relieved of criminal liability for conduct because he engages in that conduct under the mistaken belief that it does not as a matter of law constitute an offense.” Nonetheless, defendant now complains that the prosecutor’s contention and the court’s instruction were improper.

To convict him of the false instrument charges the People were required to prove defendant’s knowledge that the written instruments contained a false statement and defendant’s intent to defraud the City and State; similarly, the attempted grand larceny charge required proof that defendant intended to deprive the State of its property. Defendant now argues for the first time on appeal that his good faith belief in the legality of his conduct negated these essential mens rea elements, and the prosecutor’s contention and the court’s instruction deprived him of a fair trial and of his right to present a defense.

However, having voiced no objection at trial, defendant has failed to preserve either complaint for review (GPL 470.05 [2]; People v Balls, 69 NY2d 641 [1986]), and we decline to review them in the interest of justice. Were we to review such claims, we would find them to be without merit. “While defendant may disagree with existing tax laws, or with their generally accepted interpretations, there was no evidence that he honestly misunderstood his duties under those laws as they currently stand (see Cheek v United States, 498 US 192, 202 n 8 [1991])” (People v Maseda, 39 AD3d 226 [2007], lv denied 9 NY3d 847 [2007]). Thus, neither the common-law rule on mistake of law nor the statutory exception in Penal Law § 15.20 (2) apply to the facts of this case. The challenged comments were generally responsive to the pro se defendant’s summation comment suggesting that he was being prosecuted merely for “disagreeing” with the tax authorities and his explanations why he purported to owe no taxes.

Finally, defendant challenges the sufficiency and weight of the evidence, essentially arguing that his “openly, clearly and precisely express actions” are inconsistent with the mens rea elements of the false instrument and attempted grand larceny *333crimes. The sufficiency claim, however, has not been preserved for review by a timely argument specifically directed at the alleged insufficiency (see People v Gray, 86 NY2d 10, 19 [1995]). Moreover, defendant’s challenges to the sufficiency and weight of the evidence must be assessed in light of the elements of the crimes as they were charged to the jury without exception (see People v Dekle, 56 NY2d 835, 837 [1982]; People v Noble, 86 NY2d 814, 815 [1995]). When so assessed, defendant’s challenges are without merit. Concur—Andrias, J.P., Marlow, Sweeny and Malone, JJ.