Opinion
2016–1152 OR CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Joselina BRUCELIS, Appellant.
Law Offices of Richard L. Herzfeld, P.C. (Richard L. Herzfeld of counsel), New York, for appellant. Orange County District Attorney (Robert H. Middlemiss, of counsel), for respondent.
Law Offices of Richard L. Herzfeld, P.C. (Richard L. Herzfeld of counsel), New York, for appellant.
Orange County District Attorney (Robert H. Middlemiss, of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with animal cruelty ( Agriculture and Markets Law § 353 ) and failure to obtain a dog license (Code of the City of Middletown § 161–1). During jury selection, the City Court, without objection by defense counsel, permitted the prosecutor to belatedly exercise a peremptory challenge of a sworn juror. At the jury trial, the evidence demonstrated that defendant owned a dog named Shadow, which had been tied to a pole in the basement of defendant's home, and that a choker collar she had placed around Shadow's neck was too small, causing it to cut into his neck and become imbedded in an open and infected wound. After an animal control officer removed the dog from defendant's home, a veterinarian surgically removed the choker collar and stitched up the infected gaping wound. Additionally, the evidence showed that no City of Middletown dog license had been obtained by defendant as owner of the dog. Following the trial, defendant was convicted of the charged offenses.
Defendant's claim of error in connection with the People being permitted to exercise a peremptory challenge during jury selection after the particular juror had been sworn is unpreserved (see People v. Mancuso , 22 NY2d 679 [1968] ), and we decline to review it in the interest of justice. However, defendant also argues on appeal that she was deprived of her right to the effective assistance of counsel because, among other things, defense counsel failed to object to the error allowing the People to belatedly peremptorily challenge a sworn juror.
In Strickland v. Washington (466 US 668, 687–688 [1984] ), the United States Supreme Court determined that a defendant raising a claim of ineffective assistance of trial counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that the defendant was prejudiced as a result. In addition, New York courts "look to the fairness of the proceedings as a whole" in determining whether a defendant has received meaningful representation ( People v. Lujan , 114 AD3d 963, 963–964 [2014] ; see People v. Caban , 5 NY3d 143, 156 [2005] ; People v. Stultz , 2 NY3d 277, 284 [2004] ; People v. Benevento , 91 NY2d 708, 714 [1998] ). While "a single failing in an otherwise competent performance [may be] so ‘egregious and prejudicial’ as to deprive a defendant of his constitutional right" ( People v. Turner , 5 NY3d 476, 480 [2005], quoting People v. Caban , 5 NY3d at 152 ; see People v. Brunner , 16 NY3d 820, 821 [2011] ), such failings normally take the form of omissions that represent "clear cut, or ... dispositive error" ( People v. Calderon , 66 AD3d 314, 320 [2009] ; see People v. Turner , 5 NY3d at 481 ).
The Court of Appeals has repeatedly affirmed the utility of the preservation requirement, in particular where considerations outside the record may have guided a trial counsel's determination to decline to make an objection (see People v. Allen , 24 NY3d 441, 448–449 [2014] ; People v. Becoats , 17 NY3d 643, 651 [2011] ; see also People v. Saintilus , 74 AD3d 996, 997 [2010] ; People v. Wood , 37 AD3d 283 [2007] ). As defendant made no motion pursuant to CPL 440.10 to challenge the quality of trial counsel's representation, we do not have the benefit of the appropriate exploration of dehors-the-record matters (see People v. Jarvis , 25 NY3d 968, 973 [2015] ; People v. Brown , 45 NY2d 852, 853 [1978] ; People v. Rana , 48 Misc 3d 130[A], 2015 NY Slip Op 51029[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ), in particular, that of trial strategy (see People v. Rivera , 71 NY2d 705, 709 [1988] ), to which appellate courts accord considerable deference (see People v. Benevento , 91 NY2d at 712 ; People v. Satterfield , 66 NY2d 796, 799–800 [1985] ). Here, trial counsel's determination not to object to the removal of the sworn juror could have been based on the juror's demeanor or body language, or trial strategy—factors which cannot be discerned from the record (see People v. Barboni , 21 NY3d 393, 406–407 [2013] ; People v. Thompson , 21 NY3d 555, 560 [2013] ). Thus, we cannot conclude that, in the face of the court impermissibly allowing the People to exercise a peremptory challenge of a juror who had been sworn (see People v. Harris , 57 NY2d 335, 349 [1982] ), there was no legitimate explanation for defense counsel's failure to object to the error (see People v. Barboni , 21 NY3d at 406–407 ). In any event, the failure to object to the People's belated peremptory challenge was not so "egregious and prejudicial" ( People v. Turner , 5 NY3d at 480, quoting People v. Caban , 5 NY3d at 152 ) as to warrant a reversal on the ground that defendant was deprived of her constitutional right.
Defendant also failed to preserve for appellate review her contention that the prosecution improperly examined the city's animal control officer concerning defendant's pretrial silence (see CPL 470.05 [2 ]; People v. Beauliere , 36 AD3d 623 [2007] ; People v. Materon , 276 AD2d 718 [2000] ; People v. Davis , 223 AD2d 652 [1996] ), and we decline to review it in the interest of justice. Furthermore, we find, based on the facts of this case, that defense counsel's failure to object to this line of questioning regarding defendant's pretrial silence did not constitute ineffective representation (see People v. Pavone , 26 NY3d 629, 646–647 [2015] ).
As defendant has served her sentence, her contention that the sentence was unduly harsh or excessive has been rendered academic (see People v. Nicholson , 31 AD3d 468, 469 [2006] ; People v. Marrow , 52 Misc 3d 136[A], 2016 NY Slip Op 51046 [U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. Pompi , 31 Misc 3d 145[A], 2011 NY Slip Op 50936[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit.
Accordingly, the judgment of conviction is affirmed.
GARGUILO, J.P., and RUDERMAN, J., concur.
TOLBERT, J., taking no part.