Opinion
890 KA 15-01580
03-19-2021
The PEOPLE of the State of New York, Respondent, v. David L. LEWIS, Defendant-Appellant.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted criminal sexual act in the first degree ( Penal Law §§ 110.00, 130.50 [1] ). We affirm.
We reject defendant's contention that he was denied his right to testify before the grand jury inasmuch as the record establishes that neither defendant nor defense counsel served upon the People a written notice invoking that right (see CPL 190.50 [5] [a] ; People v. Rumph , 93 A.D.3d 1346, 1348, 940 N.Y.S.2d 769 [4th Dept. 2012]., lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012] ). Although defendant further contends that defense counsel's failure to invoke that right constitutes ineffective assistance of counsel, we conclude that defense counsel was not ineffective for that reason or for any other reason claimed by defendant. Defendant "has not shown that [he] was prejudiced by [his] attorney's failure to effectuate [his] appearance before the grand jury or that the outcome of the grand jury proceeding would have been different if [he] had testified" ( People v. Robinson , 151 A.D.3d 1701, 1701, 53 N.Y.S.3d 858 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; see People v. Lostumbo , 182 A.D.3d 1007, 1009, 123 N.Y.S.3d 319 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 821, 151 N.E.3d 502 [2020] ; People v. Coleman , 134 A.D.3d 1555, 1557, 22 N.Y.S.3d 776 [4th Dept. 2015], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 625, 56 N.E.3d 905 [2016] ). Viewing the evidence, the law and the circumstances of the case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant's contention that Supreme Court erred in refusing to suppress his statements to the police is moot because the People did not introduce those statements at trial (see Coleman , 134 A.D.3d at 1557, 22 N.Y.S.3d 776 ).
Even assuming, arguendo, that defendant preserved for our review his challenge to the court's Sandoval ruling (see generally People v. Jackson , 29 N.Y.3d 18, 23-24, 52 N.Y.S.3d 63, 74 N.E.3d 302 [2017] ), that ruling did not constitute an abuse of discretion inasmuch as "the parties’ arguments before the trial court and the court's subsequent determination show that it weighed the probative value of defendant's prior conviction[s] against [their] potential for undue prejudice" ( People v. Micolo , 171 A.D.3d 1484, 1485, 99 N.Y.S.3d 538 [4th Dept. 2019], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020] ).
We reject defendant's contention that he was denied the right to be present at all material stages of trial due to his absence from nine sidebar conferences. A presumption of regularity attaches to judicial proceedings, and that presumption may be overcome only by substantial evidence to the contrary (see People v. Velasquez , 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ; People v. Schilling , 185 A.D.3d 1433, 1434, 128 N.Y.S.3d 127 [4th Dept. 2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 291, 155 N.E.3d 784 [2020] ). Although a defendant need not preserve a challenge regarding the right to be present at a sidebar conference, a defendant alleging the denial of that right must present an adequate record for our review (see Velasquez , 1 N.Y.3d at 47-48, 769 N.Y.S.2d 156, 801 N.E.2d 376 ; People v. Kinchen , 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ). Inasmuch as the record does not indicate that defendant was absent from any of the sidebar conferences in question, we conclude that defendant failed to overcome the presumption of regularity with substantial evidence of his absence from those sidebar conferences (see Schilling , 185 A.D.3d at 1434, 128 N.Y.S.3d 127 ).
With respect to defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant failed to preserve his contentions that the race-neutral reason offered by the prosecutor was pretextual and that the court employed an erroneous procedure in denying the application (see People v. Massey , 173 A.D.3d 1801, 1802, 105 N.Y.S.3d 637 [4th Dept. 2019] ). Defendant also failed to preserve his contentions regarding alleged instances of prosecutorial misconduct during summation inasmuch as "defense counsel did not object to certain instances ..., made ‘only unspecified, general objections’ to others ..., and failed to take any further actions such as requesting a curative instruction or moving for a mistrial when his objections were sustained" ( People v. Gibson , 134 A.D.3d 1512, 1512-1513, 23 N.Y.S.3d 520 [4th Dept. 2015], lv denied 27 N.Y.3d 1151, 39 N.Y.S.3d 385, 62 N.E.3d 125 [2016] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We reject defendant's contention that the court failed to give meaningful notice of jury notes Nos. 1, 2, and 6 inasmuch as each inquiry in those notes "was nothing more than an inquiry of a ministerial nature ..., unrelated to the substance of the verdict ... As a result, the [court] was not required to notify defense counsel nor provide [him] with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution" ( People v. Ochoa , 14 N.Y.3d 180, 188, 899 N.Y.S.2d 66, 925 N.E.2d 868 [2010] ; see People v. Gelling , 163 A.D.3d 1489, 1491, 82 N.Y.S.3d 679 [4th Dept. 2018], amended on rearg 164 A.D.3d 1673, 82 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ). Contrary to defendant's further contention, we conclude that the court "respond[ed] meaningfully to the jury's request" in jury note No. 5 ( People v. Malloy , 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ; see People v. Williams , 181 A.D.3d 1298, 1299, 120 N.Y.S.3d 682 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 846, 151 N.E.3d 527 [2020] ).
We have reviewed defendant's remaining contentions and conclude that they do not require reversal or modification of the judgment.