SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
78
KA 09-00184
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CARL GOOSSENS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
CARL GOOSSENS, DEFENDANT-APPELLANT PRO SE.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered December 9, 2008. The judgment convicted
defendant, upon a jury verdict, of attempted bribing a witness,
conspiracy in the fifth degree and criminal solicitation 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 attempted bribing a witness (Penal Law §§
110.00, 215.00 [a]), conspiracy in the fifth degree (§ 105.05 [1]) and
criminal solicitation in the fourth degree (§ 100.05 [1]). Defendant
failed to preserve for our review his contention that County Court
violated his right to present a defense by limiting his cross-
examination of a witness (see People v Angelo, 88 NY2d 217, 222;
People v Schafer, 81 AD3d 1361, 1363, lv denied 17 NY3d 861; People v
Dorn, 71 AD3d 1523). In any event, defendant’s contention is without
merit (see generally People v Corby, 6 NY3d 231, 234-235; People v
Lester, 83 AD3d 1578, lv denied 17 NY3d 818). Viewing the evidence in
light of the elements of the crime of attempted bribing a witness as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict with respect to that count is not against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495).
Defendant’s remaining contentions are raised in his pro se
supplemental brief. Defendant contends that the court erred in
denying his request to substitute assigned counsel because he
demonstrated good cause for the substitution. We reject that
contention. The court made the requisite “ ‘minimal inquiry’ ” into
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KA 09-00184
defendant’s reasons for requesting new counsel (People v Porto, 16
NY3d 93, 100; see People v Adger, 83 AD3d 1590, 1591-1592, lv denied
17 NY3d 857; People v Russell, 55 AD3d 1314, lv denied 11 NY3d 930),
and defendant “ ‘did not establish a serious complaint concerning
defense counsel’s representation and thus did not suggest a serious
possibility of good cause for substitution [of counsel]’ ” (Adger, 83
AD3d at 1591). We note that the court had previously granted
defendant’s request to substitute counsel, and that “ ‘[t]he right of
an indigent criminal defendant to the services of a court-appointed
lawyer does not encompass a right to appointment of successive lawyers
at defendant’s option’ ” (People v Ward, 27 AD3d 1119, 1120, lv denied
7 NY3d 819, 871, quoting People v Sides, 75 NY2d 822, 824). Viewing
the evidence, the law and the circumstances of this case, in totality
and as of the time of representation, we conclude that defendant
received meaningful representation (see generally People v Flores, 84
NY2d 184, 187; People v Baldi, 54 NY2d 137, 147). We reject the
further contention of defendant that the court abused its discretion
in denying his request for a missing witness charge with respect to
two witnesses. The two witnesses were unavailable and, in any event,
the People established that their testimony would have been cumulative
(see generally People v Savinon, 100 NY2d 192, 196-197; People v
Gonzalez, 68 NY2d 424, 427-428).
Defendant contends that the court erred in failing to conduct a
post-trial hearing to determine whether he was denied a fair trial
when jurors allegedly observed him being escorted in shackles from the
courthouse on the first day of trial. That contention is unpreserved
for our review “inasmuch as defendant merely noted [that the jurors
had observed him in shackles] for the record and neither formally
objected nor requested any relief” with respect to that issue (People
v Johnston, 43 AD3d 1273, 1274, lv denied 9 NY3d 1007; see People v
Abron, 37 AD3d 1163, lv denied 8 NY3d 980). In any event, there is no
indication in the record that the alleged “brief and . . .
inadvertent” observation by the jurors prejudiced defendant (People v
Harper, 47 NY2d 857, 858; see People v Montgomery, 1 AD3d 984, lv
denied 1 NY3d 631).
Entered: February 17, 2012 Frances E. Cafarell
Clerk of the Court