By Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.7760. PEOPLE, res, v. George Ventura, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for res — Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 9, 2014, as amended August 12, 2016, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 25 years to life and 15 years, unanimously affirmed.The court providently exercised its discretion in denying defendant’s requests for new counsel, made during the suppression hearing and jury selection (People v. Sides, 75 NY2d 822, 824 [1990]; People v. Medina, 44 NY2d 199, 207 [1978]). Regardless of the sufficiency of the first inquiry, the court conducted a thorough inquiry into defendant’s second request (see People v. Nelson, 7 NY3d 883, 884 [2006]), and it gave defendant numerous opportunities to elaborate on his conclusory statements that defense counsel was unprepared (see People v. Linares, 2 NY3d 507, 511 [2004]). Defendant’s only specific complaints were unfounded (see People v. Felder, 17 AD3d 126, 126-27 [1st Dept], lv denied 5 NY3d 852 [2005]). When defense counsel joined in defendant’s application, he cited only defendant’s recent request and defendant’s belligerence in court the preceding day as the basis for his request, which did not amount to an irreconcilable conflict that required counsel to be relieved. ”No conflict existed other than that created by defendant through his unjustified hostility toward his competent attorney” (id. at 127).Arrest photos of defendant should have been excluded as irrelevant, and a witness’s testimony about, and speculative explanation for, “bad blood” between defendant and the victim should have been excluded as being beyond the witness’s personal knowledge. However, we find both errors harmless (see People v. Crimmins, 36 NY2d 230 [1975]). There was overwhelming evidence of defendant’s guilt, from a variety of sources, including compelling evidence of defendant’s consciousness of guilt.At a Sirois hearing (Matter of Holtzman v. Hellenbrand, 92 AD2d 405 [1983]), the People proved, by clear and convincing evidence, that, by causing a witness’s unavailability, defendant forfeited his right to confront the witness and rendered his witness’s out-of-court statement admissible. Defendant did not preserve his claim that the witness’s statement was insufficiently reliable to be admitted, and we decline to review it in the interest of justice. As an alternative holding, we find there was sufficient indicia of reliability (see People v. Cotto, 92 NY2d 68, 77-78 [1998]), including, among other things, corroboration by two other eyewitnesses.The court lawfully imposed consecutive sentences for murder and simple weapon possession (Penal Law §265.03 [3]), because the evidence supports the inference that defendant’s unlawful possession of the weapon on the street was complete before he drew the weapon and shot the victim (see People v. Brown, 21 NY3d 739, 750-751 [2013]). We perceive no basis for reducing the sentence.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.7761. Milton Goya, Plaintiff-Appellant-res, v. Longwood Housing Development Fund Company, Inc. def-res, A.A.D. Construction Corp., Defendant-res-res — Longwood Housing Development Fund Company, Inc., Third-Party plf-res, v. Triboro Maintenance Corporation Third-Party def-res — Triboro Maintenance Corporation, Second Third-Party plf-res, v. Clark & Wilkins Industries, Inc., Second Third-Party-def-res — – Longwood Housing Development Fund Company, Inc., Third-Third-Party plf-res, v. Clark & Wilkins Industries, Inc., Third-Third-Party def-res — Clark & Wilkins Industries, Inc., Fourth Third-Party plf-res, v. Cross Contracting, Inc. Fourth Third-Party def-res — Longwood Housing Development Fund Company, Inc., Fifth Third-Party plf-res, v. Cross Contracting, Inc., et al. Fifth Third-Party def-res — Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant-res — O’Connor Reed Orlando LLP, Port Chester (Steven M. O’Connor of counsel), for res-res — Litchfield Cavo LLP, New York (Dennis J. Dozis of counsel), for Longwood Housing Development Fund Company, Inc., res — Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for Melcara Corp., res — Sullivan & Klein, LLP, New York (Frederick M. Klein of counsel), for Triboro Maintenance Corporation, res — Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for AIM Construction of NY Inc., res — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for Clark & Wilkins Industries, Inc., res — Gallo Vitucci Klar LLP, New York (Sara R. David of counsel), for Cross Contracting Inc. and Cross Contracting Corp., res — Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 28, 2017, which, to the extent appealed from, denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1) claim, and denied the cross motion of defendant A.A.D. Construction Corp. (AAD) for summary judgment dismissing plaintiff’s Labor Law §240(1) claim, unanimously affirmed, without costs.The court properly denied AAD’s cross motion for summary judgment because the fire escape ladder that plaintiff was climbing at the time of the accident was a “safety device” within the meaning of Labor Law §240(1). The ladder was specifically used “to provide access to different elevation levels for the worker and his materials” (Acosta v. Kent Bentley Apts., 298 AD2d 124, 125 [1st Dept 2002]; see Sahota v. Celaj, 11 AD3d 308, 310 [1st Dept 2004]), and, as such, the record does not permit a conclusive determination that AAD was not liable for plaintiff’s injuries. Moreover, the record does not permit the conclusion that this plaintiff was the sole proximate cause of his injuries, or, that there was another, readily available ladder or safety device, that plaintiff unreasonably chose not to use (see Gallagher v. New York Post, 14 NY3d 83, 88 [2010]).The court correctly denied plaintiff’s motion for partial summary judgment because there were issues of fact as to whether he was “permitted or suffered to work on [the] building” at the time of the accident (Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 576-577 [1990]). There was conflicting evidence as to whether plaintiff had permission to perform work at the accident site on the day in question (see Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 135 AD3d 790, 791-792 [2d Dept 2016]; Lazri v. Kingston City Consol. School Dist., 95 AD3d 1642, 1644 [3d Dept 2012]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
