author: DANIEL L. DYSART, Judge.

text:
    501 RUE DECATUR, L.L.C. v. VTM PROPERTIES, LLC.
    No. 2013-CA-1586.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      William T. Finn, J. Patrick Gaffney, Carver Darden Koretzky Tessier Finn, Blossman & Areaux, LLC, New Orleans, LA for Plaintiff/Appellee.
    Michelle Mayne Davis, Mark G. Duncan, Davis & Duncan, LLC, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   DANIEL L. DYSART, Judge.

| j This is an appeal of a summary judgment granted in favor of plaintiff-appellee, 501 Rue Decatur, L.L.C. (“501 Decatur”), and dismissing the Reconventional Demand of defendant-appellant, VTM Properties, LLC (“VTM”). For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

501 Rue Decatur, L.L.C. commenced this litigation by filing a Petition for Declaratory Judgment (“Petition”) on September 19, 2012, seeking to have a lease recognized as valid and enforceable and a determination that it was not in default of the lease. The Petition alleges that 501 Decatur purchased a leasehold (the “Leasehold”) at a February 24, 2011 sheriffs sale, through which it became the lessee of the 2nd through 4th floors and the attic of a building located at 507 Decatur Street in New Orleans, Louisiana (the “Property”). The Leasehold purchased by 501 Decatur was created by a November 19, 1993 lease between 507 Decatur, Inc. (“507 Decatur”) as lessor and L’Cez, Inc. (“L’Cez”) as lessee. This original lease (sometimes referred to as “the Lease”), recorded in the conveyance records for Orleans Parish on December 1,1993, had a 25 year term beginning on December 1, 1993 (and ending in November, 2018).

| ¡According to the Petition, on February 20, 1997, L’Cez transferred its interest in the Leasehold to Decatur Hotel Corporation (“DHC”). This assignment was also recorded in the conveyance records for Orleans Parish.

The Petition then alleges that “[t]he original Lessor” (presumably, 507 Decatur) merged with Aspara Properties, LLC (“Apasra”) on January 13, 2004 and on September 10, 2010, Apasra sold the property subject to the Lease to appellant, VTM Properties, LLC. (“VTM”). Ultimately, the Leasehold became the subject of a February 24, 2011 judicial foreclosure sale, at which time 501 Decatur acquired the Leasehold.

The Petition alleges that 501 Decatur fully complied with the terms of the Lease and continually paid the monthly rent from the date it became the lessee of the property. 501 Decatur also paid the Leasehold’s taxes and the insurance on the property. VTM accepted and cashed all of 501 Decatur’s checks in 2011. While 501 Decatur also paid rent for nine months in 2012, VTM neither cashed the checks (for reasons unbeknownst to 501 Decatur) nor returned them to 501 Decatur. Rather, on September 14, 2012, VTM sent 501 Decatur a notice to vacate. 501 Decatur maintains that it never defaulted on the Lease responded to the notice to vacate by filing the instant lawsuit.

VTM answered the Petition and filed a Reconventional Demand against 501 Decatur in which VTM alleges that 501 Decatur was “illegally occupying” the premises covered by the Lease. According to VTM, when it purchased the |sproperty on September 10, 2010, the premises were occupied by Decatur Hotels, LLC. (“or one of its predecessors”), which was already in breach of the Lease by failing to pay taxes in 2010. VTM further alleges that Decatur Hotels received written notice of this breach on August 25, 2010 from “the previous owner” (presumably, Apasra).

According to VTM, Decatur Hotels was notified of VTM’s acquisition of the Lease around September 24, 2010, but Decatur Hotels still did not pay the 2010 taxes. Thereafter, some time at the end of 2010 or beginning of 2011, Decatur Hotels “either filed bankruptcy, entered into receivership, or caused the seizure and sale of all its interests.”

On December 27, 2010, VTM again notified Decatur Hotels “through facsimile and U.S. Mail” that it had already breached the lease, and VTM confirmed the cancellation of the lease, demanding that Decatur Hotels vacate the premises. After it did so, 501 Decatur “took possession of the premises sometime in February 2011.” VTM maintained that it never received notice of the “purported transfer/possession between Decatur Hotels and 501 Decatur until April 2011,” at which time 501 Decatur sought to enter a new extended lease and proposed improvements to the property. VTM further alleged that it paid the 2011 taxes, because the taxes “were not paid pursuant to the terms and conditions of the canceled written lease by either Decatur Hotels or 501 Decatur.”

On April 4, 2012, VTM notified 501 Decatur, in writing, that the original Lease “had long been canceled due to non-payment of property taxes, rent and |4other violations.” The notice further advised 501 Decatur that VTM considered 501 Decatur to be renting the premises on a monthly oral lease and was “demand[ing] payment of monthly rental of $6,000 per month, among other terms.” VTM alleged that 501 Decatur had not paid the monthly rents since April, 2012. It then sent 501 Decatur notice to vacate on September 14, 2012, specifying the following reasons: (a) 501 Decatur’s predecessor and 501 Decatur had breached any prior written lease by the continual failure to pay taxes and insurance required by the lease; (2) the prior written lease had terminated due to “lessor breach;” (3) 501 Decatur was occupying the property without any written rental agreement; and (4) 501 Decatur had failed to pay the $6000 monthly rental.

VTM’s Reconventional Demand sought a declaratory judgment finding that (1) that the previous lease between the “previous owner and lessee” (Aspara and Decatur Hotels) was cancelled due to Decatur Hotels’s breach of the lease, (2) no written lease exists between VTM and 501 Decatur, (3) 501 Decatur is in breach of any month to month lease that may exist and as such, it should be ordered to vacate the premises.

On April 1, 2012, 501 Decatur filed a Motion for Summary Judgment on the basis that the lease in existence when VTM acquired the property was still in force and had not been breached or properly can-celled. In the alternative, 501 Decatur sought a summary judgment finding that VTM’s acceptance of rental payments constituted a reinstatement of the lease.

After a hearing on August 30, 2013, the trial court granted 501 Decatur’s motion for summary judgment, finding that the November 19, 1993 lease was in | ¡¡full force and effect, and that 501 Decatur was entitled to peaceable possession of the property. The judgment also dismissed VTM’s Reconventional Demand with prejudice.

VTM timely filed this appeal.

DISCUSSION

“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137, citing Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La.11/28/01), 800 So.2d 783, 788. See also Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). If the opposing party is unable to produce evidence to show that he will be able to meet his burden of proof at trial, then there is no genuine issue of material fact. National Auto. Ins. Co. v. Champ’s New Orleans Collision Center, LLC, 06-1144, p. 2 (La.App. 4 Cir. 2/28/07), 954 So.2d 197, 199 citing Davenport v. Albertson’s, 00-00685, p. 2 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, 342. The non-moving party may not “rest on the mere allegations or denials in his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” See La. C.C.P. art. 967(B); Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 610-0542, p. 5 (La.App. 4 Cir. 5/25/11), 66 So.3d 1230, 1233. Arguments of counsel, “no matter how artful, are not sufficient to raise a genuine issue of material fact” precluding summary judgment. Haney v. Davis, 04-1716, pp. 9-10 (La.App. 4 Cir. 1/19/06), 925 So.2d 591, 597.

Having conducted a de novo review of the record before us, we find that the trial court properly granted summary judgment and we agree with the trial court that (1) the lease at issue had not been canceled, (2) 501 Decatur was not in default of that lease, and (3) 501 Decatur is entitled to peaceable possession of the property.

The Lease that is at the heart of this litigation was signed on November 19, 1993 and was originally entered into between 507 Decatur and L’Cez. The Lease contains certain obligations of the lessee, including the obligation to “pay punctually all City, State and Federal Taxes ... which may be levied or assessed against the property and to deliver to Lessor [507 Decatur] all tax receipts for same.” It further provides that “Lessor shall pay no taxes, and Lessee will reimburse Lessor for Lessee’s portion of same.” We read this latter provision to indicate that, in the event the Lessor pays taxes on the property, it is entitled to reimbursement from the Lessee.

In support of its motion for summary judgment, 501 Decatur filed the affidavit of Edwin M. Palmer, III, who is a “[m]ember and [m]anager of Decatur |7Hotels” and who “had oversight and control of the Leasehold and the Lease.” In that affidavit, Mr. Palmer attests that Decatur Hotels paid rent on the Property “for all of 2010 and January and February 2011.” He further attests that VTM never “refused” any of those rental payments. However, Mr. Palmer acknowledges that Apasra sent an August 25, 2010 notice to L’Cez that the Lease was in default for the failure to pay the 2010 property taxes. There does not appear to be any dispute between the parties that DHC did not pay the 2010 property taxes; in an August 15, 2013 letter from 501 Decatur’s counsel to VTM’s counsel, which was admitted into evidence at the hearing on the Motion for Summary Judgment, the failure to pay the 2010 property taxes is acknowledged. As-para’s August 25, 2010 letter reads in full:

The lease is currently in default for failure to pay the 2010 property taxes in accordance to [sic] the lease. The amount currently due to the City of New Orleans is $7,519.20. This includes the tax, interest, penalties and collection fees. We are enclosing for your review a copy of the property tax bill.
We need this property tax bill to be paid immediately. Please email or fax to my attention the payment receipt from the City of New Orleans for our file. If you have any question or comments, please contact me at your earliest convenience.

This letter contains no reference to the lease being canceled; rather, it simply requests the immediate payment of those taxes.

Thereafter, on September 24, 2010, notice was sent to Mr. Palmer that the property had been transferred from Apasra to VTM. The notice specifically states | sthat the “lease was duly assigned and transferred to ... VTM” and that all rental payments were thereafter to be paid to VTM. Again, this notice contains no mention of the Lease having been canceled. To the contrary, the letter suggests the continuation of the Lease by stating: (1) “[a]ll [of] the Lessor’s right and power to modify the Lease, to terminate the term thereof, or accept the surrender thereof, or to waive the performance ... by you of any obligation thereof ... have been assigned to VTM Properties, LLC,” and (2) “[a]ll other terms and conditions of the lease shall remain in full force and effect.” (emphasis added).

On December 27, 2010, counsel for VTM sent a letter to Decatur Hotels and its counsel indicating that VTM had received notice of a December 29, 2010 judicial sale of the Leasehold. In that correspondence, VTM maintained that the notice was untimely, and that it intended, if necessary, to file for injunctive relief to prevent the sale from proceeding. The letter further stated:

... Please be advised that the lease is canceled and therefore should not be a part of the property sold at sheriffs sale.
Decatur Hotels failed to pay the real estate taxes on the property for 2010 as specifically required under the terms of the lease. On August 25, 2010, the previous owner of the property, Apasra Properties, LLC, sent notice of the failure to pay taxes to Decatur Hotels, LLC. Under the terms of the lease, Decatur Hotels is not required to be placed in default and has assented to and expressly waived legal notices to vacate the premises. Therefore, VTM Properties, LLC hereby confirms the cancellation of the lease and demands that Decatur Hotels, LLC | nimmediately vacate the premises absent a new lease agreement.

While VTM’s December 27, 2010 letter refers to a December 29, 2010 judicial sale of the Leasehold, the record reflects that the sale actually took place on February 24, 2011. The deed transferring the property states that, “by [v]irtue of a writ of’ seizure and sale, the Orleans Parish Sheriff seized several properties located on Decatur Street, one property located on St. Louis Street, and the interest listed as the “LEASEHOLD INTEREST IN 2ND, 3RD AND 4TH FLOORS OF 507 DECATUR ST[.].” At the judicial sale, 501 Decatur was the highest bidder and “property was adjudicated to [501 Decatur] for the price and sum of $7,000,000.00.”

Inconsistent with VTM’s view that the lease had been canceled, as expressed in its December 27, 2010 letter, VTM continued to accept payments from 501 Decatur in the amount specified in the lease — $500 per month, as reflected in the affidavit of Michael Valentino, the manager of 501 Decatur who was responsible for “oversight of all lease and financial transactions of 501 Decatur.” In his affidavit, Mr. Valentino attests that Valentino Investments, on behalf of 501 Decatur, wrote rent checks to VTM from March — December, 2011. All of these checks, which are attached to the affidavit, were negotiated by VTM. Mr. Valentino’s affidavit also attests to the payment by 501 Decatur of rent owed | inpursuant to the lease for all of 2012 and one month of 2013, although VTM did not negotiate those checks or return them to 501 Decatur.

On May 18, 2011, Mr. Valentino sent an email to counsel for VTM, in which he introduced himself and requested “to know about any issues relative to the current lease” and in which he also notified “of possible repair and renovation work that might be forthcoming, and request[ed] terms for 25 year extension of the lease past November 2018.” Counsel for VTM responded on June 22, 2011 that VTM “is amenable to entering a new lease ... the terms and conditions of which should be worked out.” She then noted that “the previous tenant had breached the lease by not paying the property taxes and not paying for insurance pursuant to the terms of the lease.” Because of this, “[t]he previous owner and [VTM] were both forced to pay the property taxes for the years 2010 and 2011 to avoid tax sale.” She then noted that VTM “has long considered that lease to be non-existent and [501 Decatur] is now leasing the property on a month to month basis.”

Mr. Valentino responded by advising that 501 Decatur believed the current lease to be “valid and in full force and effect — albeit there are likely some deficient items which [501 Decatur] fully intend[s] to remedy.” He further indicated 501 Decatur’s belief that it “paid all property tax arrears at the sheriffs auction purchase,” but acknowledged that it might be mistaken; he requested that VTM’s counsel advise as to “any outstanding property tax disbursements that have not |nbeen reimbursed” and “any outstanding insurance disbursements that have not been reimbursed.”

On April 4, 2012, counsel for VTM sent Mr. Valentino two letters, one of which reiterated VTM’s position that it considered the lease to be “terminated due to the tenant’s various breaches of the lease,” including “its failure to pay rental, property taxes and insurance.” Both letters advised that, effective immediately, the monthly rental would be $6,000.

Thereafter, on September 14, 2012, counsel for VTM sent a Notice to Vacate to several parties, including Mr. Valentino, which states:

You have five (5) days from receipt of this notice to vacate the following property:
2nd, 3rd, & 4th Floors & attic of 507 Decatur Street ...

Due to, but not limited to, the following:

i. Your predecessor and you have breached any prior written lease which may have existed by your continued failure to pay taxes and insurance as required under the terms of that prior lease;
ii. The prior written lease had terminated due to lessor [sic] breach;
iii. You are occupying the subject property without any written rental agreement of tenancy in place;
iv. You have failed to pay the monthly rental amount demanded in the amount of $6,000.00 as rental payments on your month to month lease.

Thus, the record evidences that VTM accepted rental payments from 501 Decatur for a year after it sent (the December, 2010) notice to 501 Decatur’s predecessor-in-interest, Decatur Hotels, advising that VTM considered the Lease to |12be canceled. The last check written on 501 Decatur’s behalf for rental payments was cashed in December, 2011. Curiously, while VTM apparently maintained that the Lease was canceled at least as of December, 2010, it did nothing for nine months and neither evicted 501 Decatur, nor took any other steps consistent with the position that 501 Decatur no longer had tenancy rights. The record is devoid of any actions on VTM’s behalf (other than the June, 2011 email responding to Mr. Valentino’s email and the April, 2012 demand of an increased monthly rent of $6,000.00) during that nine month period, until it sent the September, 2012 notice to vacate.

With this background, we consider the precise questions before us — whether VTM’s acceptance of rents for a year after it sent notice of default to Decatur Hotels waives that default, or whether VTM is correct in its position that the parties were operating under a month-to-month lease because the Lease had been canceled. We first note that our jurisprudence reflects that:

Generally, when a lessee defaults on a lease agreement, the lessor has two options available: he may sue to cancel the lease and to recover accrued rentals due, or he may sue to enforce the lease and to recover both accrued rentals and future accelerated rentals (if the lease contains an acceleration clause). These remedies are mutually exclusive.

Sunbelt Security Services, Inc. v. Delahoussaye, 572 So.2d 598, 605 (La.App. 4 Cir.1990), citing Richard v. Broussard, 495 So.2d 1291, 1293 (La.1986).

As previously noted, the terms of the Lease call for the lessee (now, 501 Decatur), to pay certain costs, including taxes and insurance, in addition to monthly rent of $500.00. The default paragraph of the Lease states:

Should the Lessee at any time violate any of the conditions of this lease; or fail to pay the rent, water bill, (or other expenses assumed under this lease), punctually |isat maturity, as stipulated; ... and should such violation continue for a period of_days after written notice has been given to Lessee, then the rent for the whole unexpired term of this lease shall, without putting Lessee in default, at once become due and exigi-ble; and in such event, Lessor shall have the option either at once to demand the entire rent for the whole term, or to immediately cancel this lease, without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notice to vacate the premises....

Under the terms of the Lease, the Lessee’s failure to pay “other expenses assumed under [the] lease” is deemed a violation of the Lease. The obligation to “pay punctually all City, State and Federal Taxes ...” is clearly an “other expense[ ] assumed” by the Lessee. Accordingly, the Lessee’s failure to pay taxes punctually is a violation of the Lease. However, in the event of a lease violation, the Lessor, after giving written notice to the Lessee (which, by virtue of the blank space allows the Lessee a “reasonable time” to cure the violation) has two options: (1) to “at once” demand the entire rent for the whole unexpired term or (2) to “immediately cancel the lease.” We recognize that the Lease provisions do state, as VTM correctly noted, that the lessor could exercise one of its two options “without putting Lessee in default.” We also note that the Lease provides that “[fjailure to strictly and promptly enforce these conditions shall not operate as a waiver of 114Lessor’s rights, Lessor expressly reserving the right to always enforce prompt payment of rent, or to cancel this lease, regardless of any indulgences or extensions previously granted.” However, under the clear terms of the Lease, the Lessor’s remedy for a violation is to exercise one of its two options.

In the instant matter, Apasra did neither. While Apasra notified L’Cez (Decatur Hotels, the then current lessee, received the notice) on August 25, 2010 that the lease was in default for the unpaid 2010 property taxes and demanded immediate payment, the record is devoid of any evidence that Apasra did anything further. Nothing suggests that it demanded the rent remaining for the full term of the lease; and nothing suggests that it “immediately” cancelled the lease. Rather, Apasra (and VTM thereafter) continued to operate as though the lease was still in effect.

According to Mr. Palmer’s affidavit, even after receipt of the August 25, 2010 letter, Decatur Hotels continued to pay rent under the Lease through February, 2011 (or for 6 months, until the judicial foreclosure). Nothing in the record indicates that Apasra (or VTM, who purchased the property in September, 2010) rejected any of those rental payments. Likewise, upon its acquisition of the Property in late September, 2010, VTM simply notified Mr. Palmer that the Lease had been assigned to it, that all rental payments were to be made to it, and that the “terms and conditions of the lease” remained in full force and effect. It follows, therefore, that contrary to VTM’s contention, the Lease had not been cancelled at the time of 501 Decatur’s purchase of the Lease. We further find that the letter of December 27, 2010, from VTM’s counsel to counsel for Decatur Hotels, and in which VTM maintained that the Lease had been cancelled, does not operate as a cancellation of the Lease. This purported cancellation was not made | ^“immediately” and is in direct contradiction with VTM’s September, 2010 letter which clearly indicates that the lease was still operative.

Where a lessor notifies a lessee that a lease is canceled due to a violation of the lease and then continues to accept rent payments, the lessor has waived the violation and the lease agreement is reinstated. In A & J, Inc. v. Ackel Real Estate, L.L.C., 02-259 (La.App. 5 Cir. 10/16/02), 831 So.2d 311, for example, after a tenant had violated a lease by failing to remove signs and reserved designated parking spots not permitted by the lease, the lessor notified the lessee of the violations and demanded their cure within 15 days. This resulted in a Petition for Declaratory Relief by the lessee, and a recon-ventional demand by the lessor, seeking to evict the lessee.

Although recognizing that the lease had been violated, the court held that the lessor’s acceptance of 3 months of rent after notice of default and eviction had cured the prior lease violation. The court cited the Louisiana Supreme Court case of Canal Realty and Improvement Co. v. Pallet, 217 La. 376, 46 So.2d 303 (1950), which held that the acceptance of rent after notice of eviction by the landlord, “constituted a waiver of that notice and a forgiveness as to any and all previously committed infractions, and it served to reinstate the lease as of that time.” A & J, Inc., 02-259, p. 7, 831 So.2d at 316.

The A & J court also relied on a prior decision of this Court which indicated:

The major issue in this case is the question of whether the cancellation of the lease was waived upon acceptance of rent after the notice of cancellation was | ingiven.... The jurisprudence has been consistent in holding that when rental payment has been accepted after a notice to vacate has been given, the notice is vitiated and the tenant’s possession is maintained. Flores v. Gondolier, Ltd., 375 So.2d 400 (La.App. 3rd Cir.1979); Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App. 4th Cir.1975); West End Landing, Inc. v. Board of Commissioners, 299 So.2d 418 (La.App. 4th Cir.1974); Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957).

Id., quoting Ernst Food Mart, Inc. v. Jackson-Atlantic, Inc., 405 So.2d 1272, 1273-1274 (La.App. 4th Cir.1981). See also Adam, Inc. v. Dividend, Inc., 447 So.2d 80, 82 (La.App. 4 Cir.l984)(“By accepting a part of the rent demanded, the lessor vitiated the effect of the default and the notice”); Thompson v. Avenue of Americas Corp., 499 So.2d 1093, 1095 (La.App. 3 Cir.1986)(“the sixty day notice of default, as required by the lease contract, was vitiated by the acceptance of a part of the rent as demanded. The lease was reinstated by the acceptance of the April rent”).

VTM’s case hinges on Decatur Hotels’s violation of the Lease due to its failure to pay the 2010 property taxes. However, the record demonstrates that VTM continued to accept rent payments from Decatur Hotels through February, 2011 and from 501 Decatur thereafter through 2011. Likewise, VTM’s acceptance of rent payments from 501 Decatur continued for a year after it sent notice to Decatur Hotels of its position that the lease had been cancelled by Decatur Hotels’s failure to pay the 2010 property taxes.

VTM’s acceptance of rent payments operated to waive Decatur Hotels’s violation of the lease; the notice of cancellation was therefore vitiated and the lease agreement was reinstated.

| ^CONCLUSION

Based on the foregoing, and our de novo review of the record, we find that the trial court correctly granted summary judgment in 501 Decatur’s favor.

AFFIRMED.

      . The Petition states the company name as "Aspara.” However, the record reflects its true name to be "Apasra.”

      . The foreclosure arose in the matter entitled Whitney National Bank v. Decatur Hotels, L.L.C. and Lafayette Hotel Acquisitions, Inc., case no. 10-9955, filed in the Civil District Court for the Parish of Orleans.

      . While the Reconventional Demand does not indicate whether Decatur Hotels is the same entity as DHC, which is referenced in the Petition, the deed transferring the Leasehold interest to 501 Decatur after the foreclosure sale states that DHC is "now known as Decatur Hotels.” Accordingly, they appear to be one in the same and will hereafter be referred to as "Decatur Hotels.”

      . We note that VTM’s appellate brief recounts a "brief history of the property,” asserting a myriad of events (mainly dealing with inter-family disputes) which allegedly led to this litigation. These "facts” are not in the record and are not considered in this opinion.

      . It is undisputed that on February 20, 1997, L'Cez assigned its interest in the Leasehold to Decatur Hotel Corporation. The assignment was recorded in the conveyance records for Orleans Parish.

      . There is a reciprocal clause providing that the “Lessee will pay all taxes, and Lessor will reimburse Lessee for Lessor's portion of same.”

      . Mr. Palmer's affidavit, dated March 29, 2013, was attached to 501 Decatur’s Motion for Summary Judgment.

      . L’Cez was no longer the lessee at that time, having transferred its interest in 1997 to DHC. However, that this notice was sent to L’Cez through Mr. Scott Day, rather than to DHC, does not appear to be an issue in this case.

      . The notice enclosed a copy of the September 10, 2010 Assignment of Lease by which Apasra assigned its interest in the Lease to VTM.

      . The date it received notice is in dispute; VTM maintains that it received notice on December 24, 2010, while 501 Decatur indicates that notice was received on December 10, 2010. The actual date of VTM’s notice is not relevant to this matter as the foreclosure sale is not at issue herein.

      . This is this is the first indication to Decatur Hotels that VTM expressly maintained that the Lease was canceled. We note, too, that the record does not demonstrate that VTM attempted to enjoin the foreclosure sale of the Lease based on its contention that the Lease had already been canceled.

      . The record does not contain information as to the cause of the delay of the judicial sale.

      . Valentino Investments if an "affiliated entity" of 501 Decatur.

      . The affidavit is dated January 26, 2013; accordingly, at the time of Mr. Valentino’s affidavit, 501 Decatur was current in its rental payments.

      . While this email suggests that, in addition to failing to pay property taxes, Decatur Hotels also failed to pay insurance on the property. The August 25, 2010 letter from Apasra to L’Cez (which was received by Decatur Hotels) only notes that taxes had not been paid. This is the first occasion on which the failure to pay insurance payments is mentioned.

      . This is the first mention of VTM's contention that the parties were operating on a month-to-month lease.

      . The record contains no earlier document which suggests that the payment of rentals was an issue or formed the basis for the alleged termination of the Lease; all other documents point only to Decatur Hotels's failure to pay property taxes. Likewise, as we previously noted in footnote 10, the August 25, 2010 letter from Apasra to L'Cez only notes that taxes had not been paid; there is no indication that insurance on the property had not been paid.

      . The period of time was left blank in the Lease. However, under Louisiana law, when a term is left blank, it is considered to indicate a “reasonable” period. See La. C.C. art. 1778 ("A term for the performance of an obligation is a period of time either certain or uncertain ... It is also uncertain when it is not determinable, in which case the obligation must be performed within a reasonable time.”); see also Goldblum v. Harden, 188 So.2d 630, 632 (La.App. 4th Cir.1966) (where lease left blank the period of time for the lessee to cure a violation of the lease after written notice from the lessor, the court held that "after being notified of a lease violation the tenant should be given a Reasonable delay within which to correct the same before the landlord would have the right to terminate the lease.”)

      . We also note that, while the December 27, 2010 letter demanded that Decatur Hotels "immediately vacate the premises absent a new lease agreement,” VTM did not follow up and begin eviction proceedings or otherwise make efforts to force Decatur Hotels to vacate the premises. Rather, VTM continued to collect rent from Decatur Hotels in January and February, 2011, as Mr. Palmer attested.

      . Again, we note that VTM cashed all of 501 Decatur’s checks for 2011; it is unclear what became of the checks sent on 501 Decatur’s behalf in 2012 and the beginning of 2013.


source: Caselaw Access Project

author: SANDRA CABRINA JENKINS, Judge.

license: Public Domain

text:
    Keyalah BELL v. DEPARTMENT OF POLICE.
    No. 2013-CA-1529.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Kevin V. Boshea, Attorney at Law Me-tairie, LA, for Plaintiff/App ellee.
    Elizabeth Robins, Shawn Lindsay, Assistant City Attorney of Orleans Parish, Cherrell R. Simms, Senior Deputy Attorney of Orleans Parish, Sharonda R. Williams, City Attorney of Orleans Parish, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

liThe New Orleans Department of Police terminated Officer Keyalah Bell following a disciplinary investigation that determined that she was driving while intoxicated, crashed into a parked vehicle, fled the scene of the accident, and returned only after the owner of the damaged vehicle tracked her down. The Civil Service Commission granted Bell’s appeal, and overturned the New Orleans Department of Police’s termination decision based solely on the Department’s failure to complete its disciplinary investigation within the sixty-day time period set forth under La. R.S. 40:2531(B)(7). For the reasons set forth in O’Hern v. New Orleans Police Dep’t, 13-1416 (La.11/8/13), 131 So.3d 29, the ruling of the Civil Service Commission is reversed.

BACKGROUND

Officer Keyalah Bell, was arrested in the early morning hours of May 6, 2011, for driving while intoxicated in violation of La. R.S. 14:98, and for hit and run driving, in violation La. R.S. 14:100. At the time of the incident, Bell was employed by the New Orleans Department of Police (hereinafter also referred to as “Department”) as a police officer with permanent status. It is undisputed that she had been drinking prior to the time that she crashed her personal vehicle into a 12parked car owned by Jocelyn Owens. Witnesses were interviewed and reported that Officer Bell initially left the scene of the accident, and returned only after Ms. Owens located her a few blocks away and asked her to return. One of Ms. Owens’ neighbors, Cheryl Ver-nado, specifically recalled observing Officer Bell exit her vehicle, inspect the damage while holding her mouth, get back into her vehicle, and drive away. In addition, the officer who arrived on the scene detected a strong odor of alcohol emitting from Officer Bell’s breath.

The Department avers that an administrative investigation was launched and that field sobriety and breathalyzer tests were administered because Officer Bell initially refused to submit to a breathalyzer test as part of the criminal investigation. At the time the tests were performed, Officer Bell’s blood alcohol content level was determined to be 0.153g% — nearly twice the legal limit. The Department’s Form DI-1, entitled “Initiation of a Formal Disciplinary Investigation,” was completed on May 9, 2011; however, the Department maintains that the administrative investigation did not continue until Officer Bell received a nolle prosequi from traffic court on October 3, 2011. Thereafter, the Department’s investigator requested and received a 60-day extension of time to complete the investigation. The investigation was completed on November 9, 2011.

During the course of the investigation, Officer Bell gave an administrative statement admitting that her consumption of alcoholic beverages impaired her ability to drive. In the statement, Officer Bell admitted to going out and drinking with friends. On the way home, she said she was involved in an accident and hit her head. Officer Bell denied fleeing the scene and rather stated that she pulled Lover and stopped at the location where her vehicle rested. She also claimed to have no recollection of how her car ended up two blocks away.

Office Bell received a disciplinary letter from Department Superintendent Ronel W. Serpas dated July 31, 2012, advising that the Department’s internal investigation determined that she violated Rule 2: Moral Conduct, paragraph 1 — Adherence to Law to wit: La. R.S. 14:100 relative to Hit and Run. Rule 2 states:

Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans.... Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirements of this rule.

Based on her statement, the Department also concluded that Officer Bell’s conduct violated Rule 3: Professional Conduct, paragraph 9, Use of Alcohol/Drugs Off Duty (Category 3), which states in pertinent part:

An employee while off duty shall refrain from consuming intoxicating beverages ... to the extent it results in impairment, intoxication, obnoxious or offensive behavior that discredits him/her, [or] the Department....

Officer Bell was dismissed as a result of these two sustained violations. Although Officer Bell was also investigated for an additional violation of Rule 2, relative to driving while intoxicated, no action was taken with regard to this violation because it was determined to be duplicative of the first Rule 2 violation for hit and run.

Officer Bell timely appealed the Department’s termination decision to the Civil Service Commission for the City of New Orleans (hereinafter also referred to as “Commission”). A two-day hearing was held wherein testimony was obtained from the investigating officers and from Superintendent Serpas. In connection |4with the hearing, Officer Bell complained that she had been disciplined more severely than similarly situated officers. She also argued that there was insufficient evidence to prove that she committed the crime of hit and run in violation of La. R.S. 40:100 because all criminal charges related to the incident had been dismissed, and because the Department could not satisfy its burden of proving that she had the requisite criminal intent to commit the crime of hit and run where there was evidence that she suffered a head injury and did not know why her car traveled from the scene of the collision, that she personally called the police department following the accident, and that there was no party injured at the scene to render assistance to.

Officer Bell further argued in post-hearing briefs that the Department’s investigation was untimely under Robinson v. Dep’t of Police, 12-1039 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272 because it was not completed within 60 days as required by La. R.S. 40:2531(B)(7).

The Civil Service Commission granted Officer Bell’s appeal and reversed the Department’s decision to terminate her employment based solely on untimeliness argument. Relying almost verbatim on the Hearing Examiner’s findings, the Civil Service Commission issued its final decision on July 2,1013, concluding:

The Appointing Authority failed to complete its administrative investigation within the statutory time period. The investigation began |aon May 9, 2011 and ended on November 9, 2011. Thus, we are compelled to grant the Appellant’s appeal based upon the Appointing Authority’s failure to follow the requirements of La. R.S. 40:2531.

It is from this decision that the Department now appeals.

STANDARD OF REVIEW

A police officer who has gained permanent status shall not be subjected to disciplinary action except for cause expressed in writing. Narcisse v. Dep’t. of Police, 12-1267, p. 7 (La.App. 4 Cir. 3/06/13), 110 So.3d 692, 696; La. Const. art. X, § 8(A); La. Const. art. X, § 1(B). As the “appointing authority,” the Department is “charged with the operation of [its] department and it is within [its] discretion to discipline an employee for sufficient cause.” Pope v. New Orleans Police Dep’t, 04-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id., 04-1888 at p. 6, 903 So.2d at 5 (quoting Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990)). The burden of proving such impairment rests with the appointing authority. Cittadino, 558 So.2d at 1315.

When a disciplinary action is appealed to the Civil Service Commission, the Commission “has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment is commensurate with the dereliction.” Whitaker v. New Orleans Police Dep’t, 03-0512, p. 2 (La.App 4 Cir. 9/17/03), 863 So.2d 572, 574. The Commission, however, is not charged with such discipline and its authority to reduce a penalty can only be exercised if there i^insufficient cause for imposing the greater penalty. Pope, 04-1888, pp. 5-6, 903 So.2d at 4.

In Russell v. Mosquito Control Bd., 06-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40, this Court outlined the standard we use to review the findings of the Civil Service Commission as follows:

First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission’s decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. (Internal citations omitted).

The question of whether the Commission erred in its construction and application of the sixty-day deadline set forth in La. R.S. 40:2531(B)(7) involves an interpretation of law and is therefore subject to de novo review.

LAW AND ANALYSIS

The Department argues on appeal that its investigation was completed timely pursuant to La. R.S. 40:2531(B)(7) as interpreted by the Louisiana Supreme Court’s in O’Hern v. New Orleans Police Dep’t, 13-1416 (La.11/8/13), 131 So.3d 29— a case decided four months after the Commission’s ruling and which overruled Robinson v. Dep’t. of Police, supra. The Department also argues that the Commission erred in considering Officer Bell’s untimeliness argument which was 17raised for the first time in post-hearing briefs, and in failing to conduct an independent analysis and review transcripts, evidence and post hearing briefs as required by law. We first address the issue of timeliness under La. R.S. 40:2531(B)(7).

In the present situation, the Commission’s ruling indicates that it reversed the Department’s decision to terminate Officer Bell based solely on its finding that the Department’s administrative investigation took more than 60 days and was therefore untimely under La. R.S. 40:2531. Louisiana Revised Statute 40:2531(B)(7) governs police officer investigations and states in pertinent part:

When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days.... The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.

(Emphasis added).

Since the Commission’s ruling, the Louisiana Supreme Court has clarified the applicability of La. R.S. 40:2531(B)(7) to Department investigations into allegations of criminal conduct. In O’Hem, supra, the Supreme Court construed |sthe phrase in the last sentence of Section 2531(B)(7) which states, “nothing in this Paragraph shall limit any investigation of alleged criminal activity,” to mean that “nothing must interfere with a criminal investigation.” O’Hern, 13-1416, p. 4, 131 So.3d at 31 (Emphasis in original). The Court also recognized jurisprudence establishing that “a criminal investigation tolls the time limit for the administrative investigation.” Id., p. 5, 131 So.3d at 31. (Internal citations omitted).

In O’Hem, another officer with the New Orleans Police Department was terminated after an investigation revealed that he drove to the top of a parking garage, downed a bottle of whiskey and nearly a dozen pills, tasered himself, and discharged his weapon over 20 times, all while on duty. O’Hern, 13-1416, p. 1, 131 So.3d at 30. The incident occurred on December 12, 2009, and the Public Integrity Bureau issued a Form DI-1 on the same day, placing the officer on formal notice that his actions constituted a possible violation of Rule 2: Moral Conduct, paragraph 1, Adherence to Law. Id., p. 2, 131 So.3d at 30. The officer was arrested and pled guilty, and on March 5, 2010, the Department “converted” its criminal investigation into an administrative investigation which concluded on April 27, 2010. Id., pp. 2, 4, 131 So.3d at 30-31. According to the Court, because the facts supported a finding that the investigation was initially criminal in nature, and because the statute “specifically provide[d] that nothing shall limit an investigation involving alleged criminal activity,” the sixty-day period to complete the investigation did not begin until the investigation began administrative and was therefore timely completed within sixty days. Id., p. 7, 131 So.3d at 33.

|flThe Louisiana Supreme Court recently reaffirmed its holding in McMasters v. Dep’t of Police, 13-2634 (La.3/7/14), 2014 WL 886020 (per curiam), wherein it concluded that an investigation into allegations of false imprisonment, failing to properly verify arrest record, and signing a false affidavit was “clearly an investigation of alleged criminal activity. Therefore, the sixty-day time period of La. R.S. 40:2531[did] not apply.” Id. (citing O’Hern, supra).

It is undisputed that that Officer Bell was at all times under investigation by the Department for allegedly driving while intoxicated and for being involved in a hit and run. These allegations involve alleged conduct that is indisputably criminal in nature. Therefore, for the reasons stated in O’Hern, the sixty-day time period set forth in La. R.S. 40:2531(B)(7) could not begin to toll until the criminal proceedings were complete. Thus, based on our de novo review, we find that the Commission erred in relying on La. R.S. 40:2531(B)(7) as its basis for granting Officer Bell’s appeal.

The Louisiana Constitution grants the Civil Service Commission “the exclusive power and authority to hear and decide all removal and disciplinary cases.” O’Hern, 13-1416 p. 7, 131 So.3d at 33 (citing La. Const. art X, § 12(B)). This includes the authority to modify, reverse, or affirm a penalty. Pope, 04-1888, p. 5, 903 So.2d at 4. Because the Civil Service Commission granted Officer Bell’s appeal solely on procedural grounds, without reaching a decision on the merits of the Department’s findings, we pretermit discussion of the issues raised by the Department’s remaining assignments of error.

J^DECREE

For the reasons discussed herein, the July 2, 2013 Judgment of the Civil Service Commission is reversed, its order to reinstate Officer Bell’s employment is vacated, and this matter is remanded back to the Commission for further proceedings on the merits of Officer Bell’s appeal.

REVERSED, VACATED AND REMANDED.

      . Officer Bell contends that she was treated more harshly than other officers in the Department because of her role as a witness for the prosecution in the case against fellow officers related to the cover-up of Henry Glover's shooting death.

      . In Robinson, supra, this Court relying on former jurisprudence held that a criminal investigation into officer conduct did not suspend the sixty-day period to complete an administrative investigation under La. R.S. 40:2531(B)(7).

        .See also, Bannister v. Dep't of Streets, 95-0404, p. 7 (La. 1/16/96), 666 So.2d 641, 646, (wherein the Louisiana Supreme Court recognized the appointing authority's responsibility to take disciplinary action against an employee for impairing the efficiency of public service).

      . We note that this assignment of error was not briefed by the Department. Assignments of error that are neither briefed nor argued on appeal are considered abandoned. State v. Foy, 439 So.2d 433 (La.1983); Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4) (“All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed”).

      . These issues were raised by five separate assignments of errors that are summarized herein for ease of discussion.

      . The Court explained that the Department’s Form DI-1 evidenced the existence of a "formal” investigation, rather than an informal one. O'Hern, 13-1416, p. 6, 131 So.3d at 32.


text:
    STATE of Louisiana v. Kenan ALLEN.
    No. 2013-KA-0999.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU.
   DANIEL L. DYSART, Judge.

1TKenan Allen was charged with La. R.S. 14:30.1, the second degree murder of Alma Blevins, and three counts of La. R.S. 14.(27)30.1, the attempted second degree murders of Meshia Davis, Kingmore Blevins and Jamiri Davis. A jury found Allen guilty as charged on all counts. Allen was sentenced to serve life at hard labor, without benefits, for second degree murder and fifty years for each count of attempted second degree murder at hard labor, to run concurrently, with credit for time served.

Allen argues on appeal that there was insufficient evidence to support his convictions, that the trial court erred in allowing autopsy photographs of the victim into evidence, and that the trial court erred in not allowing a pre-trial continuance.

For the reasons that follow, we affirm the convictions and the sentences.

BACKGROUND:

Alma Blevins died on April 27, 2010, as a result of burns she sustained in a fire which took place at her apartment on Third Street in New Orleans on January 19, 2010. Her children, Meshia Davis and Kingmore Blevins, and her grandchild, Jamiri Davis, were also present when the fire took place at approximately 3 a.m., |2while they were asleep. Defendant Ken-an Allen, the boyfriend of Alma Blevins, was charged with intentionally starting the fire, which caused Alma Blevins’ death.

Meshia Davis was nineteen-years-old at the time of trial. She testified that she moved to New Orleans on January 1, 2010 from Jackson, Mississippi, and was living with her mother; her brother, Kingmore Blevins; her son, Jamiri Davis; and her mother’s friend, “Dwayne,” on the date of the fire.

Ms. Davis testified that on the evening of January 18, 2010, her mother and Dwayne got into several arguments, one concerning Dwayne talking on the phone to his ex-wife. Alma Blevins and her children asked Dwayne to leave. Ms. Davis testified that immediately after Dwayne left, a brick was thrown through the front window of the apartment. Ms. Davis and her brother, Kingmore, stepped outside and saw Allen running down the street, but did not call the police. Kingmore replaced the screen in the window. Ms. Davis testified that Dwayne called her mother later that night and threatened to tell the New Orleans Police that Alma Blevins was in violation of her parole. The police came to the apartment later that evening, asked Alma Blevins for her identification, and left. Ms. Davis stated that everyone went to bed after the police left. Ms. Davis slept in a room with her mother and her son, while her brother, Kingmore, slept in the front living room.

Ms. Davis testified that she was awakened by a “whoosh” sound, similar to when a barbeque pit is lit. She looked up to see her mother on fire at the foot of her own bed and “Dwayne” standing in the bedroom doorway, who then fled the house. She testified that her mother was completely covered in flames and that she | ¡¡saw Kenan Allen with a look on his face as that of “I want you to burn. Burn.” She related that Allen fled the apartment as the flames spread quickly — seemingly originating from a trail of flames on the floor. Ms. Davis removed her child from the burning apartment. Ms. Davis testified that her mother managed to get out of the apartment, where Kingmore extinguished the fire in her hair. A neighbor, “Ms. Sharon,” placed a robe on her mother. Ms. Davis suffered minor burns.

Kingmore Blevins, who was seventeen-years-old at the time of trial, testified that he and his mother, Alma Blevins, moved to the subject apartment in New Orleans, and that Dwayne moved in with them. He testified that his mother and Dwayne argued on the evening of January 18, 2010, and that once they initially stopped arguing, Dwayne received a phone call, and another argument ensued between his mother and Dwayne. Everyone told Dwayne to leave the apartment. Kingmore Blevins testified that after Dwayne left, a window in the front of the apartment was broken from the outside by either a brick or piece of asphalt. Kingmore and his sister exited the apartment and saw Dwayne running down the street. A neighbor, “Ms. Sharon,” called maintenance and was told the window could not be fixed until morning, so Kingmore Blevins placed the screen back in the window. He then went to sleep and was awakened by his mother rolling on his bed to “put herself out” as she was on fire. He stated that once they ran out of the apartment, he took his shirt off and used it to put the fire out in his mother’s hair. He recalled “drips” of fire on the ground going out of the back door of the apartment like a “pattern.” He testified that the next time he saw Dwayne was later that evening in a police car outside of the burning apartment complex.

Sharon Smith testified that she was a tenant of the apartment complex that caught fire the night of January 19, 2010, and that she lived next door to Alma [4Blevins. Ms. Smith identified Kenan Allen at trial and testified that she believed Men had been living at Alma Blevins’ apartment for about two months. She testified that on the night of the fire, she heard Alma Blevins and Kenan Allen arguing. Ms. Smith testified that she heard Alma Blevins’ window shatter at approximately 9 p.m., and that she had bricks thrown through two windows in her apartment around 11 p.m. and again at 1 a.m. She called the police the first time, but told the officer that she did not know the name of the person who threw the brick. After the 1 a.m. incident, her nephew and his girlfriend apprehended Allen. She stated that Allen apologized for throwing the bricks through her window, and explained that he thought it was Alma Blevins’ window. Allen offered to pay for the damages.

At approximately 3 a.m., Ms. Smith was awakened by Meisha Davis beating on her door and screaming about the fire. As Ms. Smith left her apartment, she saw Alma Blevins descending the stairs while still ablaze. She described Alma Blevins removing her burning nightgown, and said that she provided Alma with a robe.

Ashley Fain, a paramedic for the City of New Orleans, testified that on January 19, 2010, she responded to a two alarm fire on Third Street in New Orleans. Upon arriving at the scene, Alma Blevins was standing in front of the complex with burns over her entire body. Alma Blevins told her that she woke up on fire. Ms. Fain testified that Ms. Blevins’ had burns to 70-80 percent of her body, and that after she transported Ms. Blevins to the trauma unit at University Hospital, she did not believe she would survive.

Harry Mendoza was a police captain with the NOPD, assigned to the New Orleans Fire Department in January of 2010. He testified that he was called out to 15the fire on Third Street in the early morning hours of January 19, 2010, and upon arrival saw damage to a second floor apartment that had traveled to the third floor. Captain Mendoza called Alcohol Fire and Tobacco unit (“ATF”) agents, Dan Hebert and Chad Edmonds, to investigate the fire. Captain Mendoza testified that he interviewed Sharon Smith at the scene and was made aware of an incident between Ms. Blevins and Allen. From that interview, he determined that “Dwayne Maxie” was a suspect.

The ATF agents were able to determine through use of the ATF’s computer system that Dwayne Maxie’s real name was Kenan Allen, and were able to obtain his photograph. Captain Mendoza also learned that Allen frequented the area of Oretha Castle Haley and Clio streets. He and ATF Agent Hebert went to that location, apprehended Allen, and transported him back to the scene. As they arrived, several people surrounded the police car and angrily shouted that Allen “was the guy” who started the fire. Sharon Smith positively identified Allen at the scene.

Captain Mendoza testified that during the ride back to the scene, Allen attempted to establish an alibi by telling the officers that he was in a motel on Claiborne Avenue in New Orleans at the time the fire occurred; however, after determining this statement was false, Captain Mendoza charged Allen with aggravated arson.

Daniel Hebert, a special agent with the ATF for twenty-four years, testified that he and Chad Edmonds, another ATF agent, investigated the fire on Third Street on January 19, 2010, to determine the possible origin of the fire and how it spread. Based on his observations, Agent Hebert determined that the fire was 1 fiintentionally set with a liquid accelerant. Once Agent Hebert established the cause of the fire, he accompanied Captain Mendoza to look for the suspect.

Agent Hebert testified that he and Captain Mendoza found Allen by use of the photograph they had obtained from a computer search and a description of his clothes they had obtained from witnesses on the scene. They arrested Allen, placed him in the back of Captain Mendoza’s police car, and Agent Hebert read Allen his Miranda warnings. Agent Hebert stated that Allen attempted to give an alibi once they told him about the fire, but changed his story several times.

Detective Christopher Harris testified that he was the lead detective in the homicide investigation. He testified that he was called to the coroner’s office upon Alma Blevins’ death on April 27, 2010. He received the reports from both ATF and the New Orleans Police Department concerning the events of January 19, 2010, and used the information gathered to classify the death as a homicide.

Dr. Michael Defatta, a forensic pathologist, testified that he performed the autopsy on Alma Blevins, and determined that the deceased sustained deep thermo injuries to approximately ninety percent of her body. He identified photos of the burned body for the jury. He testified that although the primary cause of death was classified as sepsis, which caused pericar-ditis, the death was directly related to complications from the severe burns suffered by Ms. Blevins.

17DISCUSSION:

A. Insufficiency of the Evidence

In his first assignment of error, Allen argues that the trial court erred in finding that there was sufficient evidence to support his convictions, specifically that the State did not exclude every reasonable hypothesis that Allen could be innocent. Allen asserts that there were no witnesses who testified that they actually saw him light the fire or heard him threaten Alma Blevins. He maintains that the State failed to present any physical evidence to link him to the fire, such as accelerant on his clothes, fingerprints or evidence that he had purchased gasoline. He argues that even if one were to assume that the State had presented some sort of circumstantial evidence, one cannot doubt that the State failed to exclude every reasonable hypothesis of innocence and that, accordingly, his convictions must be reversed.

Allen argues that the Due Process Clause of the First Amendment requires that the State prove every element of the crime accused beyond a reasonable doubt, and relies on this Court’s reversal of the trial court in State v. Woodfork, 99-0859 (La.App. 4 Cir. 5/17/00), 764 So.2d 132. In Woodfork, this Court found that the evidence presented was insufficient to convict, however, the facts in Woodfork are | ^markedly different from the instant case. In Woodfork, the defendant was identified by the victim some three months after the attack, whereas in this instant matter Ken-an Allen was known to and immediately identified by several witnesses, including Meshia Davis and Sharon Smith.

Allen also relies on La. R.S. 15:438 in conjunction with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), (discussed infra), and argues that the trial court was required to look at all of the evidence, both direct and circumstantial, to prove him guilty.

Allen maintains that the State failed to prove that he had the specific intent to kill Alma Blevins or inflict great bodily harm as required by La. R.S. 14:30.1, and argues that Meshia Davis’s testimony that she saw him in the doorway after her mother was set on fire was not corroborated by any other witness. He points out that Kingston Blevins testified that Allen did not have a key to the apartment, and there was no evidence that he broke into the apartment. He suggests that these two factors created reasonable doubt sufficient for a not guilty verdict. Lastly, Allen argues that, assuming Sharon Smith’s nephew did confront him about throwing bricks through her window, if he were angered enough to set a person on fire, he would not have offered to pay Sharon Smith for damage to her property.

The State maintains that Allen’s identification at trial by Meisha Davis, who knew him, coupled with the witnesses’ explanation of a motive, were enough to Rprove Allen guilty beyond a reasonable doubt. The State argues that Allen offered no rebuttal to the expert testimony that the fire was arson, nor did he offer any evi-denee to rebut Meshia Davis’s testimony that she awoke to the sound of combustion and found Kenan Allen standing in the doorway of her mother’s bedroom.

The standard of appellate review of a sufficiency of the evidence claim was set forth in the United States Supreme Court decision of Jackson v. Virginia, 448 U.S. 307, 318, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979), which explained that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Louisiana courts have consistently applied the Jackson standard of review in assessing sufficiency of the evidence claims. This Court has repeatedly stated that, in discharging its duty to review the claims under the Jackson standard, an appellate court must not only look to whether “the record " contains evidence that tends to support each fact necessary to constitute the crime,” but must “consider the record as a whole.” See State v. Danastasio, 12-1157, p. 7 (La.App. 4 Cir. 1/30/14), 133 So.3d 224, 229, quoting State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111 (internal citations omitted); State v. Taylor, 13-0265, p. 12 (La.App. 4 Cir. 12/18/13), 130 So.3d 439, 446; State v. Kirk, 11-1218, pp. 5-6 (La.App. 4 Cir. 8/8/12), 98 So.3d 934, 939, writ denied, 12-2023 (La.2/8/13), 108 So.3d 80.

At trial, the testimony of the witnesses established that Allen and Alma Blevins had argued several times the night of the fire, and that Allen came back to the apartment to intimidate the victim by breaking her window. Allen’s argument | inthat he did not have a key to the apartment was offset by the State’s evidence that he could have gained entry to the apartment through the window on which Kingston Blevins had placed the screen earlier that evening (the screen was on the ground next to the window when the police arrived). Most compelling was Meshia Davis’ testimony that she actually saw him standing in the doorway of her mother’s bedroom at the time the fire erupted. Although there was testimony by the desk clerk of a nearby motel that Allen had registered at the motel the night of the incident, the same witness also testified that she had ordered him to leave well before the time of the fire. There was no evidence introduced that placed Allen elsewhere at the time the fire was set. Ms. Smith (the neighbor), Captain Mendoza, and Agent Hebert also testified that once Allen was returned to the scene of the crime, numerous individuals pointed him out as “that guy,” indicating he was the one who had set the fire.

It is the jury’s province to weigh the evidence and the credibility of the witnesses, and its finding will not be disturbed absent an abuse of discretion. State v. Barnes, 11-1421 (La.App. 4 Cir. 9/19/12), 100 So.3d 926. Further, after our review of the above evidence in the light most favorable to the prosecution, we find there was sufficient evidence for the jury to determine beyond a reasonable doubt that Allen committed second degree murder and attempted second degree murder. We find no merit to this assignment of error.

B. Admission of Autopsy Photographs

In a second assignment of error, Allen argues that the trial court abused its discretion in allowing the State to introduce, over objections from the defense, three gruesome autopsy photographs of the victim’s body.

|n-Allen submitted a motion in limine arguing that the introduction of the autopsy photographs would have a prejudicial effect on the jury. The record indicates that the State sought to introduce twenty-three photographs of Alma Blevins’ burned body. Upon Allen’s objection, the trial court ruled that only three 8"- x 10" photographs and one enlarged 3' x 3' photograph could be used during trial. It was agreed that all photographs could be used during the coroner’s examination, but not published to the jury.

In State v. Sepulvado, 93-2692, p. 6 (La.4/8/96), 672 So.2d 158, 164, the Supreme Court addressed the issue of prejudicial photographs, and held:

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Landry, 388 So.2d 699 (La.1980). Post-mortem photographs of murder victims are admissible to prove corpus delicti, to provide positive identification of the victim, to corroborate other evidence establishing cause of death, the manner in which death occurred, and the location, placement, and severity of wounds. State v. Bourque, 622 So.2d 198, 236 (La.1993).

Sepulvado, p. 6, 672 So.2d at 164. Sepulvado involved the murder of a six-year-old boy who had been struck in the head with a screwdriver and then immersed in scalding water by his stepfather. The Supreme Court affirmed the trial court’s decision to allow the introduction of post-mortem photographs of the child’s injuries, finding that the photographs were necessary to explain the nature of the injury. The photographs were not repetitive or cumulative, and their probative value outweighed any possible prejudicial effect.

In a more recent case, the Supreme Court set forth that “[pjhotographic evidence will be admitted unless it is so gruesome that it overwhelms jurors’ reason and leads them to convict without sufficient other 112evidence ... The admission of ‘gruesome’ photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect.” State v. Magee, 11-0574, p. 54-55 (La.9/28/12), 103 So.3d 285, 323 (internal citations omitted.).

Allen maintains that the reason the jury convicted him was because the photos of Alma Blevins were particularly horrible and prejudicial and should have been excluded. In support he cites State v. Morns, 245 La. 175, 157 So.2d 728 (1963), wherein the trial court allowed publication of the step-by-step progression of an autopsy. The Louisiana Supreme Court reversed and remanded the ease for a new trial, finding that photographs of the coroner holding up photographs of individual organs of the deceased were more prejudicial than probative.

The State maintains that the trial court did not abuse its discretion in allowing photographs of the victim’s burned body into evidence, citing State v. Sepulvado, infra. The State argues that while the photos were graphic in the instant case, it was necessary to introduce the photographs to show the jury the extent of the injuries that caused Alma Blevins’ demise, particularly in light of Kenan Allen’s questioning of the cause of death. The State points out that photographs of the victim were not taken at the scene, as the police were more interested in having her quickly transported to the hospital, and, thus, the autopsy photographs were the only means to prove for the jury the extent of her fatal wounds.

Here, the photographs depicted the injuries suffered by Alma Blevins and the condition and location of those injuries on her body. It is apparent from the record that the trial court in this case engaged in a thoughtful and detailed examination of each photograph and excluded the majority of the photographs the State sought to introduce.

|iaWe find that the trial court did not abuse its discretion in allowing into evidence a limited number of photographs to prove the extent of the "victim’s injuries and the cause of death.

We find no merit to this assignment of error.

C. Denial of Motion to Continue

In his last assignment of error, Allen argues that he was denied a fair trial as the trial court abused its discretion in denying his motion for continuance. Allen’s counsel sought additional time to review lengthy medical records. He asserts that the State gave him the medical records on November 27, 2012, just prior to the December 4, 2012 trial, and argues that because the victim died two months after the fire, he should have been given additional time to locate an expert to determine her cause of death (which he asserted at the time may have been due to hospital negligence).

The record indicates that although the defense moved for a continuance on November 29, 2012, arguing that it needed time to hire an expert, at the beginning of trial on December 4, 2012, defense counsel stated: “after many hours of review I’ve done on this case as well as the medical records, ..., and consulting with medical personnel, there will be no contestation of the cause of death.”

In State v. Manning, 20-1982, p. 30 (La.10/19/04), 885 So.2d 1044, 1077, the Supreme Court stated:

We have consistently held that the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Bourque, 622 So.2d 198 at 225 (La.1993); La.C.Cr.P. art. 712. In addition, this Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific luprejudice. Bourque, 622 So.2d at 225; State v. Champion, 412 So.2d 1048, 1051 (La.1982).

Here, defense counsel’s statements at the commencement of trial rendered moot his reasons for a continuance. Also, defense counsel had the opportunity to cross-examine the State’s forensic expert, but did not do so, instead opting to stipulate that the victim’s cause of death was a homicide. Accordingly, we find Allen has failed to make a showing of abuse of discretion or of specific prejudice to his rights, which would entitle him to relief. See State v. Holmes, 590 So.2d 834 (La.App. 4 Cir.1991). We find this assignment is without merit.

Accordingly, for all of the reasons set forth herein, we affirm the convictions and sentences of Kenan Allen.

AFFIRMED.

      . The bill of indictment indicates that this victim’s name is "Jamuary.” However, the child’s mother testified that his name is Jami-ri.

      . The witnesses refer to Kenan Allen as "Dwayne." The record indicates that the defendant's legal name is Kenan Allen, but that he used the aliases of Dwayne Maxey, Larry Moore, Kewan Allen, Ken Jones and Larry Allen.

      . A review of the record for errors patent reveals that the trial court failed to include that the sentences for violation of La. R.S. 14(27)30.1, three counts of attempted second-degree murder, were without benefits. The law mandates that the sentence be served without benefit of parole, probation or suspension of sentence. La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court.

        Furthermore in State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the trial court's failure to specify that the defendant's sentences be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

      . La. R.S. 15:438 states:
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

      . See also State v. Holmes, 590 So.2d 834 (La.App. 4 Cir.1991).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Corey EXPOSE.
    No. 2013-KA-0970.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Corey Expose, appeals his conviction for attempted possession of heroin, arguing that the trial court’s denial of his motion to continue the trial resulted in ineffective assistance of counsel. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction.

Relevant Facts and Procedural History

The defendant was charged with possession of heroin on January 15, 2009. He pleaded not guilty and, on September 18, 2009, Mr. Arthur Laugand made an appearance as defense counsel. At the motion hearing on March 19, 2010, the defendant was still represented by Mr. Laugand when the trial court found probable cause and denied the defendant’s motion to suppress evidence, but after Mr. Glen Woods appeared as counsel for the defendant at hearings on April 13, 2011, and May 4, 2011, Mr. Laugand filed a motion to withdraw as counsel. On June 22, 2011, a jury trial commenced with Mr. Woods representing the defendant. After the jury was unable to reach a verdict, the court declared a mistrial and Mr. Woods appeared for pre-trial conferences on June 23, 2011, and June 30, 2011, but for the third pretrial conference on July 27, 2011, Ms. Joyce Sallah, an associate |2of Martin Re-gan, appeared for the defendant. At that conference, trial was set for September 14, 2014, and notices were sent to Mr. Regan. Ms. Sallah appeared again for the September 14, 2014, trial setting when the trial was continued by joint motion until October 18, 2011. On that date, Mr. Woods appeared and filed a motion to withdraw from the case, which was denied. The case was continued until December 6, 2011. The December 6, 2011 trial date was later continued and the matter was set for trial on January 11, 2012. The minute entry reflects that Mr. Regan was notified. On January 4, 2012, Ms. Sallah appeared in court to request that an instanter subpoena be issued for trial. On January 11, 2012, Mr. Regan appeared and requested another continuance. Mr. Regan’s motion for a continuance was granted and the trial was set for March 13, 2013. On that date, Ms. Sallah appeared and requested another continuance on behalf of Mr. Regan. The trial court denied the request but, after Ms. Sallah explained that she had been sick and was not prepared for trial, reset the trial for the following day.

On March 14, 2012, Ms. Sallah appeared for trial, filing a motion in limine to exclude reference to defendant’s statement that he had prior convictions and could not “take” a heroin charge. The State acknowledged that any reference to the defendant’s prior convictions would be inappropriate. Thereafter, the following evidence was adduced at trial. Officer Nathaniel Joseph of the New Orleans Police Department (NOPD) testified that on December 29, 2008, he was assigned to the Fifth District Task Force and oh patrol with Officers Travis Brooks and Nicolas Williams on France Street, traveling in a lake bound direction, at approximately 3:30 p.m. From his position as the front seat passenger of the patrol car, Officer Joseph observed that a driver of a vehicle traveling in the opposite direction was not wearing a seatbelt and had an unrestrained infant seated in his | 3lap. In accordance with Officer Joseph’s order to stop the vehicle, Officer Williams activated the lights and siren of the patrol car and pulled in front of the oncoming car.

In addition to the driver, two adult passengers were in the vehicle. Accordingly, upon exiting the police car, Officer Joseph approached driver’s side while Officers Williams and Brooks approached the passenger side of the suspect vehicle. Upon request for his driver’s license, registration and proof of insurance, the defendant (the driver of the vehicle) was unable to produce a driver’s license. After returning to the patrol vehicle and learning that the defendant’s driver’s license had been suspended, Officer Joseph informed him that he was under arrest for operating a vehicle with a suspended license, for a seat belt violation, and for having an unrestrained child in his vehicle. The defendant exited the vehicle and placed the child into the child seat located in the rear of the vehicle. Officer Joseph then handcuffed him with his hands behind his back. While handcuffed, the defendant reached around to his front pants pocket and removed a clear plastic bag containing what Officer Joseph suspected to be contraband. A struggle ensued between Officer Joseph and the defendant with both men falling to the ground. Although Officer Brooks went to Officer Joseph’s aide, the defendant continued to kick violently until Officer Joseph used his electronic control device, a tazer, to subdue him. After being “tazed” twice, the defendant became compliant and Officer Joseph recovered a clear plastic bag containing heroin from Mr. Expose’s hand.

Under cross examination, Officer Joseph could not recall whether he was previously familiar with the two passengers in the vehicle or whether he had ever testified that he knew the other men. He acknowledged that one of the men was |4now deceased. Refreshing his memory by examining the transcript from the first trial, Officer Joseph acknowledged that he had previously testified that he, Officer Brooks, and Officer Williams were all familiar with the other two subjects. Officer Joseph stated, however, that he did not recognize either of the back seat passengers when he told Officer Williams to stop the oncoming car because the distance was just too great to observe who was in the rear seat of the vehicle.

Officer Nicholas Williams testified, confirming that he drove the patrol vehicle on the day in question and, after stopping the .patrol vehicle, approached the passenger side of the vehicle to keep an eye on the occupants while Officer Joseph interviewed the driver briefly and returned to the patrol car. After a few minutes Officer Joseph returned to the vehicle and, as Officer Joseph was about to place the driver under arrest, Officer Williams told the two occupants of the vehicle to step out and move towards the police car. They complied, but as he started to run their names in the computer, he observed Officer Joseph embroiled in a struggle with the driver of the vehicle. Officer Williams stated that it appeared to be a non-compliant stop and that at one point Officer Joseph and the defendant went to the ground. He observed Officer Joseph use his tazer. He stated that eventually Officer Joseph and Officer Brooks were able to get the suspect into handcuffs. According to Officer Williams, neither of the two occupants removed from the car were arrested, being released after a name check was performed.

Prior to being booked at Central Lockup, the defendant was taken to University Hospital. While there, the officers returned the defendant’s money ($900.00) to his wife for household expenses. The child was taken to the Juvenile Division and then released to his mother.

| sOfficer Travis Brooks also testified, confirming that on the day in question he was the rear passenger in the patrol car, traveling north on France Street when Officer Joseph observed a traffic violation. Officer Brooks testified that when he exited the patrol vehicle, Officer Joseph was behind him. While maintaining a watchful eye on the passengers and child, Officer Brooks observed Officer Joseph speak to the driver and then relocate back to the police vehicle. A short time later, Officer Brooks heard a commotion going on. The driver was already in handcuffs, but was combative and a struggle ensued. Officer Joseph removed his tazer and, with Officer Brooks providing hands-on assistance, subdued the handcuffed defendant. Officer Brooks acknowledged that he was familiar with the two passengers from previous encounters.

The jury found the defendant guilty of attempted possession of heroin.

On March 21, 2012, the defendant filed a motion for new trial. On March 27, 2018, the trial court denied the motion for new trial and Ms. Sallah made an oral motion to withdraw. On March 29, 2012, Mr. L. Scott Sherman, an attorney with the Orleans Public Defender’s office, appeared and filed a motion for judgment of acquittal. The court denied the motion and sentenced the defendant to four years at hard labor. A multiple bill hearing was set for May 4, 2012. On March 30, 2012, Ms. Sallah filed a written motion to withdraw as counsel of record. She informed the court that she was no longer employed by Mr. Regan. On May 22, Ms. Heather Hendrix, another attorney associated with Mr. Regan appeared. On June 15, 2012, Mr. Regan appeared and filed a motion to withdraw as counsel of record. On September 25, 2012, the trial court appointed the Orleans Public Defender to represent the defendant. On October 19, 2012, Mr. Regan filed a motion for out-of-time appeal. He also filed a second motion to withdraw as |ficounsel at that time. On January 18, 2013, defendant appeared for sentencing represented by Mr. Donald Donnelly, an attorney with the Orleans Public Defender’s office. Mr. Expose admitted to the allegations of the multiple bill. The trial court sentenced defendant to twenty years at hard labor as a fourth felony offender. Thereafter, the motion for appeal filed on behalf of the defendant was granted.

Error Patent Review

A review of the record reveals one error patent: the trial court sentenced the defendant immediately after denying his motion for post-verdict judgment of acquittal. Although La.Code Crim. Proc. art. 821 requires only that a motion for post-verdict judgment of acquittal be made and disposed of before sentence and does not explicitly require a twenty-four-hour delay in sentencing, this court has applied the twenty-four-hour delay in La.Code Crim. Proc. art. 873 to motions for post-verdict judgment of acquittal. See State v. Wilson, 526 So.2d 348, 350 (La.App. 4 Cir.1988). Nevertheless, it is harmless error for a court to impose a sentence without complying with the twenty-four hour delay when the defendant does not challenge his sentence on appeal. State v. Wheeler, 04-0953, p. 9 (La.App. 4 Cir. 3/9/05), 899 So.2d 84, 89

Defendant’s Assignment of Error

The defendant argues that, because the trial court denied his motion to continue and allowed Ms. Sallah only one day to prepare his defense, he received ineffective assistance of counsel at trial.

Denial of Motion to Continue

First, a decision to grant or deny a continuance lies within “the sound discretion of the trial judge, and a reviewing court will not disturb such a 17determination absent a clear abuse of discretion.” State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on rehearing).

The defendant’s reliance on State v. Knight, 611 So.2d 1381 (1993), to support his argument is misplaced. In Knight, the defendant was represented by Mr. Joseph Meyer, an attorney with the Indigent Defenders’ Office. On the day of trial, Mr. Meyer was on vacation and another indigent defender, Maurice Hattier, appeared on behalf of Mr. Meyer to “cover” the docket. Mr. Hattier’s request for a continuance was denied and, despite his unfamiliarity with the case, the matter proceeded to trial. Because Mr. Hattier had no opportunity to prepare a defense, however, the Louisiana Supreme Court concluded that the defendant was constructively denied counsel. In this case Ms. Sallah (unlike Mr. Hattier) appeared in court for the defendant on a number of occasions prior to trial and, based on her claim that she had been ill and was unprepared to proceed to trial, the trial court allowed Ms. Sallah a full day to prepare her defense.

Similarly, the defendant’s reliance on State v. Laugand, 99-1124, 99-1327 (La.3/17/00), 759 So.2d 34, is misplaced. In that case, the Louisiana Supreme Court granted the defendant’s application for supervisory review after finding that the record corroborated trial counsel’s assertion he had not prepared his client’s case. In granting relief, however, the Court observed that the trial court had to intervene to keep trial counsel from pursuing matters which appeared directly adverse to his client’s interests. The court also found that the defendant was prejudiced as follows:

Counsel thereby failed to lay the legal groundwork for presenting an alibi defense; subpoenaed a witness under circumstances which suggested not an informed professional assessment that an alibi defense was a viable one but a desperate attempt to cobble together any defense at the last moment; failed even) sto provide the court with all of the information necessary to make a fully informed decision on the continuance motion; and, once trial began, pursued questioning of the state’s witnesses at trial which revealed lack of even a rudimentary knowledge of the circumstances surrounding the investigation of the crime and the arrests of relator and his co-defendant.

Laugand, 759 So.2d at 36.

By contrast, the record in this case does not reflect that Ms. Sallah was unfamiliar with the facts of the case, nor did she pursue any theories adverse to defendant’s interest. Rather, Ms. Sallah effectively cross-examined the three officers, highlighting discrepancies in their testimonies. Moreover, Ms. Sallah gave an opening statement and, although the entirety of her closing argument is not transcribed, there is no indication that her closing argument was adverse to the defendant’s interests. Accordingly, the defendant has not demonstrated that he was prejudiced by the trial court’s refusal to grant more than a day’s continuance.

Finally, State v. Addison, 94-2745 (La.6/23/95), 657 So.2d 974, cited by the defendant is also distinguishable. In that case, the trial court forced the defendant to proceed to trial despite the last minute substitution of an attorney who was not familiar with the case and, upon review, the Louisiana Supreme Court observed the trial judge was venting her frustrations with the public defender’s office by forcing the defendant to proceed to trial. The Court, although acknowledging that the defendant would be entitled to a new trial if he could establish that his attorney was totally unprepared for trial, concluded that the record before it did not establish that the defendant received ineffective assistance of counsel and remanded the matter back to the trial court for an evidentiary hearing. Again, the record in this case indicates that Ms. Sallah was familiar with the case and competently represented 19the defendant. Accordingly, we do not find that the trial court abused its discretion in denying the defendant’s motion for another continuance.

Ineffective Assistance of Counsel

With regard to the defendant’s argument that he received ineffective assistance of counsel at trial, to succeed on this claim he must establish two criteria: (1) that his trial counsel’s performance was deficient and (2) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Mercadel, 12-0685, p. 16 (La.App. 4 Cir. 7/24/13), 120 So.3d 872, 882 (claims of ineffective assistance of counsel are generally “relegated to postconviction proceedings, unless the record permits definitive resolution on appeal”).

On direct appeal, the defendant asserts that Ms. Sallah was ineffective because she failed to read the transcript of the previous trial and motion hearing, as well as the police report, and failed to document each officer’s prior testimony in order to confront them with differences in their own testimony and each other’s accounts. He claims that had Ms. Sallah been granted more time to prepare, she would have been able to gain an acquittal. It is also suggested that no one talked to the defendant about subpoenaing the two passengers in the car at the time of his arrest to testify on his behalf.

Because neither the transcript of the prior trial, nor the police report is contained in the record before us, we are unable to determine what, if any, discrepancies Ms. Sallah failed to exploit to the defendant’s advantage during trial. Furthermore, the record is completely silent with respect to what level of preparation Ms. Sallah was able to achieve in the time provided. Additionally, the record is silent with respect to the claim that the defendant would have benefitted if |inthe two passengers had been called to testify. Therefore, because the record is insufficient to adequately address the ineffective assistance issues raised by the defendant, these claims should be addressed in an application for post-conviction relief where he will be afforded the opportunity to develop evidence with regard to his claim. Accordingly, we pretermit any further discussion of this claim.

Conclusion

On the record before us, we do not find that the trial court clearly abused its discretion in denying the defendant’s motion to continue on the record and, accordingly, the defendant’s conviction is affirmed.

CONVICTION AFFIRMED.