SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

233 

KA 11-01121 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DANIEL BRADFORD, JR., DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT.

 

Appeal from a judgment of the Steuben County Court (Marianne

Furfure, A.J.), rendered April 7, 2011. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree,

criminal contempt in the first degree (two counts), aggravated

criminal contempt, offering a false instrument for filing in the first

degree and tampering with physical evidence. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the facts and the law by reversing that part

convicting defendant of tampering with physical evidence and

dismissing count six of the indictment, and by vacating the sentences

imposed on the remaining counts, and as modified the judgment is

affirmed and the matter is remitted to Steuben County Court for

resentencing on those counts. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, murder in the second degree (Penal

Law § 125.25 [1]), aggravated criminal contempt (§ 215.52 [1]), and

tampering with physical evidence (§ 215.40 [2]). Defendant failed to

preserve for our review his contention regarding the selection of

juror number one inasmuch as he did not exercise a challenge for cause

or a peremptory challenge against her (see People v Forino, 65 AD3d

1259, 1260, lv denied 13 NY3d 907; People v Berry, 43 AD3d 1365, 1366,

lv denied 9 NY3d 1031; People v Howington, 284 AD2d 1009, 1009-1010,

lv denied 97 NY2d 683). Even assuming, arguendo, that defendant had

challenged the prospective juror and his challenge had merit, we note

that defendant’s contention would not require reversal because he

failed to exhaust his peremptory challenges prior to the completion of

jury selection (see CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 248;

People v Arguinzoni, 48 AD3d 1239, 1241, lv denied 10 NY3d 859). 
-2- 233 

KA 11-01121 

We reject defendant’s contention that County Court erred in

denying his requests for substitution of assigned counsel. A trial

court must carefully evaluate serious complaints about counsel, and

“should substitute counsel when a defendant can demonstrate ‘good

cause’ ” for removal of his current attorney (People v Linares, 2 NY3d

507, 510). Here, the court carefully evaluated defendant’s first

request, made after the first witness testified, and properly

concluded that defense counsel was “reasonably likely to afford . . .

defendant effective assistance” of counsel (People v Medina, 44 NY2d

199, 208; see generally People v Smith, 18 NY3d 588, 592-593). The

court also properly denied defendant’s second request for assignment

of new counsel later in the trial, which was based on defendant’s

unsubstantiated allegation of a conspiracy between defense counsel,

the court, the prosecutor and law enforcement agencies, as well as

defense counsel’s alleged failure to file appropriate motions and

cross-examine certain witnesses in accordance with defendant’s wishes,

and the frequent arguments between defendant and defense counsel. “At

most, defendant’s allegations evinced disagreements with counsel over

strategy . . . , which were not sufficient grounds for substitution”

(People v Agard, 107 AD3d 613, 613, lv denied 21 NY3d 1039; see

Linares, 2 NY3d at 511; Medina, 44 NY2d at 209).

Defendant further contends that he was denied effective

assistance of counsel based on various errors made by defense counsel. 

With respect to defendant’s contention that defense counsel failed to

move to suppress certain items seized from the former marital

residence, we note that defendant was barred from the premises by an

order of protection “and thus had neither a legitimate expectation of

privacy therein nor standing to challenge the police entry into the

house” (People v Robinson, 205 AD2d 836, 837, lv denied 84 NY2d 831).

“Given that the governing law was unfavorable, we cannot say on this

record that the failure to make [that suppression motion] rendered

counsel’s otherwise competent performance constitutionally deficient”

(People v Brunner, 16 NY3d 820, 821). Defendant’s remaining “alleged

instances of ineffective assistance concerning defense counsel’s

failure to make various objections [or certain motions or requests]

‘are based largely on [defendant’s] hindsight disagreements with

defense counsel’s trial strategies, and defendant failed to meet his

burden of establishing the absence of any legitimate explanations for

those strategies’ ” (People v Douglas, 60 AD3d 1377, 1377, lv denied

12 NY3d 914; see People v Lane, 106 AD3d 1478, 1480, lv denied 21 NY3d

1043; People v Stepney, 93 AD3d 1297, 1298, lv denied 19 NY3d 968). 

Viewing the evidence, the law, and the circumstances of this case in

totality and at the time of representation, we conclude that defendant

received effective assistance of counsel (see generally People v

Baldi, 54 NY2d 137, 147).

Contrary to defendant’s further contention, the court properly

granted the prosecutor’s Ventimiglia/Molineux application, thereby

permitting the People to introduce evidence that defendant had

previously threatened to kill the victim, that the victim planned to

enforce the order of protection that had been issued against

defendant, and that defendant had engaged in assaultive conduct toward

the victim in the past. The evidence was admissible because it tended
-3- 233 

KA 11-01121 

to prove defendant’s intent and the absence of mistake or accident,

and its probative value outweighed its potential for prejudice (see

People v Alvino, 71 NY2d 233, 242; People v Siplin, 66 AD3d 1416,

1417, lv denied 13 NY3d 942; People v Gonzalez, 62 AD3d 1263, 1265, lv

denied 12 NY3d 925). The evidence also established the victim’s state

of mind (see People v Gorham, 17 AD3d 858, 860-861; People v McClain,

250 AD2d 871, 872, lv denied 92 NY2d 901; see generally People v Cook,

93 NY2d 840, 841), which tended to disprove the defense advanced at

trial that the victim was accidentally injured while riding an ATV

with defendant. 

Defendant failed to preserve for our review his contention that

the conviction is not supported by legally sufficient evidence because

he failed to renew his motion for a trial order of dismissal after

presenting evidence (see People v Lane, 7 NY3d 888, 889; People v

Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,

viewing the evidence in the light most favorable to the People (see

People v Contes, 60 NY2d 620, 621), we conclude that the conviction is

supported by legally sufficient evidence (see generally People v

Bleakley, 69 NY2d 490, 495). 

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

conclude that the verdict is against the weight of the evidence only

with respect to the crime of tampering with physical evidence (see

generally Bleakley, 69 NY2d at 495). We therefore modify the judgment

accordingly. The record establishes that, after the other crimes in

the indictment had been committed, defendant may have cleaned part of

the scene of the crime. Inasmuch as that is the only evidence that

relates to the tampering charge, we conclude that it was unreasonable

for the jury to conclude, as was charged in the indictment, that the

People established beyond a reasonable doubt that defendant,

“believing that certain physical evidence was to be produced or used

in a prospective official proceeding and intending to prevent such

production or use, . . . suppressed [that property] by an act of

concealment, alteration or destruction” (cf. People v Porpiglia, 215

AD2d 784, 784-785, lv denied 86 NY2d 800).

Defendant failed to preserve for our review his contention that

remarks made by the prosecutor during summation constituted

prosecutorial misconduct that deprived him of a fair trial (see People

v Stanley, 108 AD3d 1129, 1131, lv denied 22 NY3d 959), and we decline

to exercise our power to review that contention as a matter of

discretion in the interest of justice (see CPL 470.15 [6] [a]).

The sentence is not unduly harsh or severe. We note, however,

that a discrepancy between the sentencing minutes and the certificate

of conviction requires vacatur of the sentences imposed on the

remaining counts. Although the sentencing minutes indicate that the

sentence imposed on count two is to run consecutively to the sentences

imposed on counts three through five, the minutes are silent with

respect to whether the sentence imposed on count two is to run

consecutively or concurrently to the sentence imposed on count one. 
-4- 233 

KA 11-01121 

Thus, by operation of law, those sentences shall run concurrently (see

Penal Law § 70.25 [1] [a]). The certificate of conviction, however,

indicates that the sentences imposed on counts one and two are to run

consecutively. Inasmuch as the record leaves open the possibility

that the court’s failure to specify at sentencing that those sentences

are to run consecutively was accidental (cf. People v Vasquez, 88 NY2d

561, 580-581), we further modify the judgment by vacating the

sentences imposed on the remaining counts, and we remit the matter to

County Court for resentencing on those counts (see People v Jacobson,

60 AD3d 1326, 1329, lv denied 12 NY3d 916; People v Sinkler, 288 AD2d

844, 845, lv denied 97 NY2d 761).

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court