People v. Rosen

185 A.D.2d 128, 585 N.Y.S.2d 742, 1992 N.Y. App. Div. LEXIS 8768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1992
• Status: Published

Opinions

—Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered May 23, 1990, convicting defendant, after a jury trial, of 25 counts of grand larceny in the second degree, nine counts of offering a false instrument for filing in the first degree, two counts of securities fraud, and one count each of a scheme to defraud in the first degree and conspiracy in the fifth degree, and sentencing him to an aggregate term of imprisonment of from 16 to 48 years, which was reduced by operation of law to a term of imprisonment of from 10 to 20 years (Penal Law § 70.30 [1] [c] [i]), affirmed. The case is remitted to the criminal court to direct defendant’s surrender (CPL 460.50 [5]).

Defendant was a financial comptroller and one of the chief administrators of a complicated scheme, involving over 30 companies, to defraud investors through the sale of fraudulent real estate tax shelters, in which funds were taken from investors under false pretenses, funnelled through false accounts, and used to start up new companies* These schemes eventually resulted in a theft of $152,000,000 from some 2400 investors, and the near collapse of four financial institutions.

After a week of trial, defendant expressed dissatisfaction with counsel and requested a mistrial so that new counsel could be substituted. Defendant’s contention on appeal that the denial of his motion deprived him of his right to counsel is without merit, defendant having failed to carry his substantial burden of demonstrating good cause for substitution of counsel (People v Medina, 44 NY2d 199, 207-208) necessitated by forces beyond his control (People v Arroyave, 49 NY2d 264, 271-272). The timing of the motion enhanced defendant’s burden of demonstrating the existence of exigent or compelling circumstances (supra), and it does not appear that the trial court abused its discretion (People v Tineo, 64 NY2d 531, 537; cf, People v Sides, 75 NY2d 822, 824).

Defendant failed to preserve by specific and timely objection any challenge to the court’s preclusion of further inquiry on cross-examination of one of the People’s witnesses as to her knowledge of the reputation in the community of another of the People’s witnesses (People v George, 67 NY2d 817; People v Trinidad, 177 AD2d 286, lv denied 79 NY2d 865). Since the infirmity in this line of inquiry concerned defendant’s failure to lay an appropriate foundation (see, People v Bouton, 50 NY2d 130, 139-140) rather than any misapprehension of the law by the court, there is no reason to review the court’s ruling in the interest of justice.

Nor, did defendant preserve any challenge that court personnel improperly communicated with a juror in defendant’s absence. In any event, the exchanges in question were merely ministerial (People v Roldan, 173 AD2d 233, lv denied 78 NY2d 926; People v Townes, 165 AD2d 761, lv denied 77 NY2d 844).

Likewise, defendant failed to preserve by specific and timely objection any claim that the court excessively interfered in the cross-examination of one of the People’s witnesses (People v Charleston, 56 NY2d 886; People v Hunt, 167 AD2d 272, lv denied 77 NY2d 878) and defendant’s motion for a mistrial several days later did not serve to revive the unpreserved claim (People v De Mauro, 48 NY2d 892, 893; People v Merriweather, 175 AD2d 90, lv denied 78 NY2d 1013). Moreover, in light of defendant’s failure to present a reviewable record that the court’s demeanor reflected unfavorably on him, we find no basis for reviewing such claim in the interest of justice.

Also unpreserved by timely specific objections are defendant’s challenges to the cross-examination of his own character witnesses and the prosecutor’s summation comments (People v Rivera, 73 NY2d 941; People v Balls, 69 NY2d 641). Again, we decline to review these claims in the interest of justice.

The defendant contends that he was excluded from sidebar conversations, although his counsel, who was kept on as an advisor, took part. When the defendant raised the question with the Trial Judge, the Judge said that he had thought that counsel was informing the defendant of what had taken place. The defendant conceded this, but contended that a two minute explanation did not match a twenty minute sidebar.

After the objection by defendant, the Judge ordered that sidebars be dispensed with and that everything be on the record.

While the matter is not free from doubt in view of the recent decisions of the Court of Appeals in People v Dokes (79 NY2d 656 [Sandoval hearing]) and People v Sloan (79 NY2d 386 [voir dire]), when objection was made the court took the proper steps.

Finally, we find no basis to disturb the sentencing court’s exercise of discretion. Concur—Carro, J. P., Kupferman, Asch and Smith, JJ.