People v. Basurto , 2020 NY Slip Op 05291 ( 2020 )

People v Basurto (2020 NY Slip Op 05291)

People v Basurto

2020 NY Slip Op 05291

Decided on October 01, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 01, 2020
Before: Gische, J.P., Oing, Singh, Mendez, JJ.

Ind No. 2399/2016 Appeal No. 11906 Case No. 2018-2481

[*1]The People of the State of New York, Respondent,

v

Antonio Basurto, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Diana Wang of counsel), for respondent.

Judgment, Supreme Court, New York County (Anthony J. Ferrara, J.), rendered September 28, 2017, convicting defendant, after a jury trial, of two counts of burglary in the first degree, and sentencing him to concurrent terms of 7½ years, unanimously affirmed.

Defendant failed to preserve his argument that the court interfered with his relationship with his trial counsel by making an inappropriate inquiry into defendant's decision not to testify (see People v Narayan , 54 NY2d 106, 112 [1981]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court providently exercised its discretion in inquiring into whether defendant understood that he had the personal right to testify, a right that he ultimately chose to exercise. The court's permissible inquiry was based on, among other things, defendant's statements that he had not had enough time to decide whether to testify, and his uncertainty over whether he agreed with defense counsel's recommendation that he not do so.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 1, 2020