People v. Swinson

Appellate Division of the Supreme Court of New York

People v. Swinson

30 A.D.3d 1127, 816 N.Y.S.2d 445

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 2006

StatusPublished

This text of 30 A.D.3d 1127 (People v. Swinson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Swinson, 30 A.D.3d 1127, 816 N.Y.S.2d 445 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered May 20, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of éxk to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]).

The court properly denied defendant’s request for missing witness charges as to various police officers who did not witness [1128]*1128the drug transaction, and who played peripheral roles in the case. Defendant’s assertion that these officers could have provided material, noncumulative testimony is speculative (see People v Macana, 84 NY2d 173, 180 [1994]).

Defendant’s challenge to the court’s reasonable doubt charge requires preservation (see People v Thomas, 50 NY2d 467 [1980]), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find no basis for reversal (see People v Antommarchi, 80 NY2d 247, 251-252 [1992]).

Defendant’s claim that he was deprived of effective, conflict-free assistance of counsel involves matters outside the record and is thus unreviewable on direct appeal (see People v Love, 57 NY2d 998 [1982]). The existing record does not establish that a conflict existed at the time of trial, or that it operated to defendant’s detriment or had a substantial relation to the conduct of his defense (see Cuyler v Sullivan, 446 US 335, 348-350 [1980]; People v Harris, 99 NY2d 202, 210-211 [2002]). Moreover, the court addressed any possible problem by providing defendant with a reasonable opportunity to discharge his retained counsel and hire new counsel; the record does not indicate that defendant qualified for assigned counsel. Concur— Tom, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.

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Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered May 20, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of éxk to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]).

The court properly denied defendant’s request for missing witness charges as to various police officers who did not witness [1128]*1128the drug transaction, and who played peripheral roles in the case. Defendant’s assertion that these officers could have provided material, noncumulative testimony is speculative (see People v Macana, 84 NY2d 173, 180 [1994]).

Defendant’s challenge to the court’s reasonable doubt charge requires preservation (see People v Thomas, 50 NY2d 467 [1980]), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find no basis for reversal (see People v Antommarchi, 80 NY2d 247, 251-252 [1992]).

Defendant’s claim that he was deprived of effective, conflict-free assistance of counsel involves matters outside the record and is thus unreviewable on direct appeal (see People v Love, 57 NY2d 998 [1982]). The existing record does not establish that a conflict existed at the time of trial, or that it operated to defendant’s detriment or had a substantial relation to the conduct of his defense (see Cuyler v Sullivan, 446 US 335, 348-350 [1980]; People v Harris, 99 NY2d 202, 210-211 [2002]). Moreover, the court addressed any possible problem by providing defendant with a reasonable opportunity to discharge his retained counsel and hire new counsel; the record does not indicate that defendant qualified for assigned counsel. Concur— Tom, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.

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Bluebook (online)

30 A.D.3d 1127, 816 N.Y.S.2d 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-swinson-nyappdiv-2006.

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