Opinion
2015-05-27
The PEOPLE, etc., respondent, v. Gentl BONDS, appellant.
Stephen C. Cooper, New York, N.Y. (Ronald Cohen of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters and Edward D. Saslaw of counsel), for respondent.
Stephen C. Cooper, New York, N.Y. (Ronald Cohen of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters and Edward D. Saslaw of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered October 5, 2011, convicting him of predatory sexual assault and rape in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Buchter, J.), and upon the recommendation of a Judicial Hearing Officer (Cooperman, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant was indicted on charges of robbery in the first degree (two counts), predatory sexual assault, and rape in the first degree. After a jury trial, the defendant was found guilty of the robbery charges, and a mistrial was declared as to the other two charges. Upon retrial, the defendant was convicted of predatory sexual assault and rape in the first degree, and the instant appeal is taken from those convictions. The defendant's contention on this appeal that his statements to law enforcement officials were the product of coercion and therefore inadmissible was previously rejected by this Court on an appeal from the judgment convicting him of the robbery charges ( see People v. Bonds, 118 A.D.3d 717, 987 N.Y.S.2d 428). That determination “constitutes the law of the case, and, absent a showing of manifest error in the prior decision or that exceptional circumstances exist warranting departure from the law of the case doctrine, the defendant is precluded from having this issue reconsidered” ( People v. Martinez, 194 A.D.2d 741, 741–742, 600 N.Y.S.2d 250 [internal quotation marks omitted]; see People v. Boone, 84 A.D.3d 1108, 1109, 925 N.Y.S.2d 512). Under the circumstances of this case, there is no basis to reconsider that issue ( see People v. Breazil, 110 A.D.3d 913, 973 N.Y.S.2d 299; People v. Oliver, 82 A.D.3d 1267, 919 N.Y.S.2d 370).
The defendant further contends that the trial court erred in admitting into evidence his redacted videotaped statement without ensuring that its contents had not been edited so as to unfairly prejudice the defense. However, the specific contention he now asserts has not been preserved for appellate review, as the defendant did not raise this challenge to the videotaped statement at the trial ( seeCPL 470.05[2]; People v. Jackson, 178 A.D.2d 438, 439, 577 N.Y.S.2d 299; People v. Diaz, 161 A.D.2d 789, 556 N.Y.S.2d 128; People v. Economy, 156 A.D.2d 459, 548 N.Y.S.2d 750; People v. Santiago, 108 A.D.2d 939, 486 N.Y.S.2d 276). In any event, the contention is without merit ( see People v. Kent, 143 A.D.2d 278, 532 N.Y.S.2d 152).
Similarly unavailing is the defendant's contention that he was deprived of a fair trial as a result of certain comments made by the prosecutor during the opening statement. The defendant failed to lodge any specific objection to the prosecutor's allegedly improper remarks ( seeCPL 470.05[2] ), and he neither moved for a mistrial nor sought curative instructions with regard to any statement ( see People v. Bramble, 81 A.D.3d 968, 917 N.Y.S.2d 297; People v. Franklin, 77 A.D.3d 676, 908 N.Y.S.2d 359; People v. Howard, 48 A.D.3d 481, 852 N.Y.S.2d 182). Therefore, his current challenges to the prosecutor's opening statement are unpreserved for appellate review. In any event, they lack merit. The prosecutor adequately described in his opening statement what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial ( see People v. Bonds, 118 A.D.3d at 719, 987 N.Y.S.2d 428; People v. Jorgensen, 113 A.D.3d 793, 978 N.Y.S.2d 361, lv. granted 23 N.Y.3d 1063, 994 N.Y.S.2d 322; People v. Etoria, 266 A.D.2d 559, 699 N.Y.S.2d 121).
Contrary to the defendant's contention, he has not demonstrated that his trial counsel was ineffective under either federal or state constitutional standards ( see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). The record establishes that defense counsel provided meaningful representation as a whole ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834). The defendant has failed to show the absence of strategic or other legitimate explanations for counsel's alleged shortcomings or for the defense theory pursued at trial ( see People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Green, 107 A.D.3d 915, 967 N.Y.S.2d 753; People v. Moore, 66 A.D.3d 707, 711, 886 N.Y.S.2d 468, affd. 15 N.Y.3d 811, 908 N.Y.S.2d 146, 934 N.E.2d 879). Accordingly, the defendant has failed to establish that he was denied his constitutional right to the effective assistance of counsel ( see People v. West, 105 A.D.3d 781, 961 N.Y.S.2d 785; People v. Prescott, 63 A.D.3d 1090, 880 N.Y.S.2d 567).
The defendant's remaining contentions are without merit.