People v. Thomas

People v Thomas 2026 NY Slip Op 05879 October 9, 2026 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v SHAMERE THOMAS, DEFENDANT-APPELLANT. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on October 9, 2026 636 KA 22-00492 Present: Lindley, J.P., Curran, Ogden, Delconte, And Hannah, JJ. ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN P. GREEN, DISTRICT ATTORNEY, ROCHESTER (AERON SCHWALLIE OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered March 16, 2022. The judgment convicted defendant upon a jury verdict of criminal possession of a controlled substance in the third degree (two counts) and criminally using drug paraphernalia in the second degree (two counts). [*1] 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 two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]). To the extent that defendant challenges Supreme Court's denial of defense counsel's request for an adjournment of trial, we conclude that the court did not abuse its discretion in denying the request. One week before trial, defendant replaced his appointed public defender with newly retained defense counsel, who then requested that the trial be adjourned to allow him time to prepare. It is well settled that " '[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court' " (People v Diggins, 11 NY3d 518, 524 [2008]; see People v Spears, 64 NY2d 698, 699-700 [1984]), but in "particular situations, when the protection of fundamental rights has been involved in requests for adjournments," the court's discretion is "more narrowly construed" (Spears, 64 NY2d at 700). Even in such situations, however, " '[t]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice' " (People v Peterkin, 81 AD3d 1358, 1360 [4th Dept 2011], lv denied 17 NY3d 799 [2011]; see People v Elmore, 243 AD3d 1252, 1253 [4th Dept 2025], lv denied 45 NY3d 970 [2026]). Under the circumstances of this case, we conclude that the court did not abuse its discretion inasmuch as defendant "did not demonstrate that the requested adjournment was necessitated by factors outside his control" (People v DeValle, 194 AD3d 1411, 1412 [4th Dept 2021], lv denied 37 NY3d 964 [2021]), that the request was not "a delaying tactic" (People v Fagan, 12 AD3d 1080, 1081 [4th Dept 2004]), or that any prejudice would result (see Elmore, 243 AD3d at 1253; People v Migranyan, 237 AD3d 1109, 1109 [2d Dept 2025], lv denied 44 NY3d 983 [2025]). We also reject defendant's contention that he was deprived of effective assistance of counsel. "What constitutes effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation" (People v Baldi, 54 NY2d 137, 146 [1981]; see People v Benevento, 91 NY2d 708, 712 [1998]). "The core of the inquiry is whether defendant received 'meaningful representation' " (Benevento, 91 NY2d at 712). "[T]o prevail on a claim of ineffective assistance, [a] defendant[ ] must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement [*2]with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice" (id. at 713 [internal quotation marks omitted]). Thus, "it is incumbent on [a] defendant to demonstrate the absence of strategic or other legitimate explanations for defense counsel's allegedly deficient conduct" (People v Atkins, 107 AD3d 1465, 1465 [4th Dept 2013], lv denied 21 NY3d 1040 [2013] [internal quotation marks omitted]; see People v Bank, 124 AD3d 1376, 1377 [4th Dept 2015], affd 28 NY3d 131 [2016]; People v Young, 167 AD3d 1448, 1449 [4th Dept 2018], lv denied 33 NY3d 1036 [2019]). Here, while the newly retained defense counsel (defense counsel) stated at his initial appearance, only a week before trial, that "[t]here's just no way I can provide effective assistance at this point" without an adjournment, he nonetheless advanced a sensible and consistent strategy at trial contending that the People failed to prove intent to sell and constructive possession. Although defense counsel waived an opening statement, the court immediately advised the jury that defendant was under no obligation to make opening statements and, thus, "any prejudice that might have resulted was sufficiently mitigated by the court's instruction to the jury" (People v Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019], lv denied 35 NY3d 944 [2020]). Based on our review of the record, defense counsel made a detailed and thorough closing statement that focused on his trial strategy, communicated with defendant's former public defender, made appropriate pretrial and posttrial motions as well as a motion for a trial order of dismissal, engaged in jury selection, and cross-examined each of the People's witnesses consistent with the trial strategy. Viewing defense counsel's representation in its totality and as of the time of the representation, we conclude that defendant received meaningful representation (see Baldi, 54 NY2d at 147; People v Irvine, 197 AD3d 988, 991 [4th Dept 2021], lv denied 37 NY3d 1060 [2021]; People v Spencer, 183 AD3d 1258, 1260 [4th Dept 2020], lv denied 35 NY3d 1070 [2020]). We further note that defendant rejected the plea agreement offered by the People prior to discharging his public defender and, thus, defense counsel could not have been ineffective for failing to dissuade him from doing so. Defendant also contends that his conviction of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) is not supported by legally sufficient evidence because the People failed to establish his intent to sell the drugs that were found in and around his vehicle. We reject that contention. The jury was entitled to infer defendant's intent to sell the drugs based on the quantity of cocaine and fentanyl that were recovered as well as the other items of evidence seized at the same time, including packaging usually used for narcotics, dozens of baggies, a scale, multiple cell phones, labels for packaging, and over $400 in cash in varying denominations (see People v Tolbert, 181 AD3d 1321, 1322 [4th Dept 2020], lv denied 35 NY3d 1116 [2020]; People v Nowlin, 145 AD3d 1447, 1449 [4th Dept 2016], lv denied 29 NY3d 1035 [2017]; People v Freeman, 28 AD3d 1161, 1162 [4th Dept 2006], lv denied 7 NY3d 788 [2006]). Additionally, defendant attempted to flee the scene when police first tried to talk to him, crashing his vehicle while an officer was partially in the vehicle and then attempting to continue to flee on foot. No empty vials, used wax envelopes or empty bags indicative of drug use were found in the vehicle. Furthermore, viewing the evidence in light of the elements of the counts of criminal possession of a controlled substance in the third degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict convicting him of those counts is not against the weight of the evidence with respect to the element of intent (see Tolbert, 181 AD3d at 1322; Nowlin, 145 AD3d at 1449-1450; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The contention of defendant at trial that the drugs could have been for his personal use "merely raised an issue of credibility for the jury to resolve" (People v Bell, 296 AD2d 836, 837 [4th Dept 2002], lv denied 98 NY2d 766 [2002]; see Tolbert, 181 AD3d at 1322). We conclude that the sentence is not unduly harsh or severe. Defendant failed to preserve for our review his contention that, in determining the sentence to be imposed, the court penalized him for exercising his right to a jury trial, inasmuch as defendant did not raise that contention at sentencing (see People v Stubinger, 87 AD3d 1316, 1317 [4th Dept 2011], lv denied 18 NY3d 862 [2011]). In any event, that contention is without merit. "[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the [*3]record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial" (id. [internal quotation marks omitted]; see People v Tetro, 181 AD3d 1286, 1290 [4th Dept 2020], lv denied 35 NY3d 1070 [2020]). Additionally, contrary to defendant's contention, we conclude that when sentencing him, "the court properly considered uncharged criminal conduct to the extent that it found the information reliable and accurate" (People v Ekiert, 232 AD3d 1275, 1276 [4th Dept 2024]; see People v Bratcher, 291 AD2d 878, 879 [4th Dept 2002], lv denied 98 NY2d 673 [2002]; People v Brunner, 182 AD2d 1123, 1123 [4th Dept 1992], lv denied 80 NY2d 828 [1992]), as well as suppressed evidence (see Ekiert, 232 AD3d at 1276; People v Brown, 281 AD2d 700, 702 [3d Dept 2001], lv denied 96 NY2d 826 [2001]; People v Estenson, 101 AD2d 687, 687 [4th Dept 1984]). Entered: October 9, 2026 Ann Dillon Flynn Clerk of the Court