Opinion
2017–08067 2018–14455 Ind. Nos. 9104/15, 6471/16
06-24-2020
The PEOPLE, etc., Respondent, v. Joseph DIXON, Appellant.
Paul Skip Laisure, New York, N.Y. (Anna Kou of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Sullivan & Cromwell, LLP [Christopher M. Weldon ], of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anna Kou of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Sullivan & Cromwell, LLP [Christopher M. Weldon ], of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), both rendered April 19, 2017, convicting him of attempted assault in the second degree under Indictment No. 9104/15, upon a jury verdict, and criminal possession of a controlled substance in the third degree under Indictment No. 6471/16, upon his plea of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
With respect to the appeal from the judgment rendered under Indictment No. 9104/15, the defendant's contention that the prosecutor made improper remarks during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, certain of the prosecutor's remarks were improper, including those which, among other things, denigrated the defendant and could have been intended to evoke the jury's sympathy (see People v. Cunningham, 171 A.D.3d 1207, 1208, 98 N.Y.S.3d 611 ; People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ). Nevertheless, the defendant was not deprived of a fair trial by the prosecutor's remarks, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error in this regard might have contributed to his conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123 ).
Moreover, defense counsel's failure to object to certain improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Bunting, 146 A.D.3d at 795, 43 N.Y.S.3d 910 ).
Additionally, the sentence imposed upon the defendant's conviction of attempted assault in the second degree was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
With respect to the appeal from the judgment rendered under Indictment No. 6471/16, the defendant's purported waiver of his right to appeal was invalid (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Tellado, 181 A.D.3d 830, 831, 118 N.Y.S.3d 417 ). When explaining the waiver of the right to appeal, the Supreme Court stated to the defendant, "[s]o what this means is you're not going to have any help or any lawyer to help you effect an appeal on the conviction or any lawful sentence that I impose. Nobody is going to provide you with transcripts or any other help." These statements "utterly ‘mischaracterized the nature of the right a defendant was being asked to cede’ " ( People v. Thomas, 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970, quoting People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Tellado, 181 A.D.3d at 831, 118 N.Y.S.3d 417 ). The written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal as it did not contain clarifying language that appellate review remained available for select issues (see People v. Tellado, 181 A.D.3d at 831, 118 N.Y.S.3d 417 ). Thus, the purported waiver does not preclude appellate review of this excessive sentence claim.
However, the sentence imposed upon the defendant's conviction of criminal possession of a controlled substance in the third degree was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.