We reject defendant's further contention in appeal Nos. 1 and 3 that he is entitled to a new trial due to alleged errors during jury selection. In particular, defendant contends that the court erred in denying his challenge for cause to a first prospective juror and in seating on the jury a second prospective juror who allegedly demonstrated actual bias. Defendant does not dispute that he did not peremptorily challenge the second prospective juror, but he contends that the court should have obtained from that prospective juror an unequivocal assurance of her impartiality. "By failing to raise that challenge in the trial court . . . , defendant failed to preserve it for our review" (People v Boykins, 134 AD3d 1542, 1542 [4th Dept 2015], lv denied 27 NY3d 1066 [2016] [internal quotation marks omitted]; see People v Simmons, 119 AD3d 1343, 1344 [4th Dept 2014], lv denied 24 NY3d 964 [2014], reconsideration denied 24 NY3d 1088 [2014]). Even if we were to assume, arguendo, that the court erred in failing to excuse the second prospective juror sua sponte, such an error would not constitute reversible error "unless . . . defendant ha[d] exhausted his peremptory challenges at the time or, if he ha[d] not, he peremptorily challenge[d] such prospective juror and his peremptory challenges [were] exhausted before the selection of the jury [was] complete" (CPL 270.20 [2]; see Boykins, 134 AD3d at 1542; Simmons, 119 AD3d at 1344).
Defendant does not dispute that he did not peremptorily challenge the second prospective juror, but he contends that the court should have obtained from that prospective juror an unequivocal assurance of her impartiality. "By failing to raise that challenge in the trial court ..., defendant failed to preserve it for our review" ( People v. Boykins, 134 A.D.3d 1542, 1542, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] [internal quotation marks omitted]; seePeople v. Simmons, 119 A.D.3d 1343, 1344, 988 N.Y.S.2d 389 [4th Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014], reconsideration denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014] ).Even if we were to assume, arguendo, that the court erred in failing to excuse the second prospective juror sua sponte, such an error would not constitute reversible error "unless ... defendant ha[d] exhausted his peremptory challenges at the time or, if he ha[d] not, he peremptorily challenge[d] such prospective juror and his peremptory challenges [were] exhausted before the selection of the jury [was] complete" ( CPL 270.20[2] ; seeBoykins, 134 A.D.3d at 1542, 22 N.Y.S.3d 774 ; Simmons, 119 A.D.3d at 1344, 988 N.Y.S.2d 389 ).
Judge: Decision Reported Below: 4th Dept: 134 AD3d 1542 (Yates)
Inasmuch as the record does not establish that defendant exhausted his peremptory challenges, he is not entitled to reversal based on the alleged errors during jury selection (see CPL 270.20 [2]). We reject defendant's contention that he was denied effective assistance of counsel based upon defense counsel's failure to challenge the relevant prospective jurors inasmuch as defendant failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge those prospective jurors (see People v Slack, 137 AD3d 1568, 1570 [4th Dept 2016], lv denied 27 NY3d 1139 [2016]; People v Boykins, 134 AD3d 1542, 1542 [4th Dept 2015], lv denied 27 NY3d 1066 [2016]; People v Swan, 126 AD3d 1527, 1527 [4th Dept 2015], lv denied 26 NY3d 972 [2015]). Contrary to defendant's related contention, defense counsel was not ineffective for failing to move for a mistrial or to have a new panel of jurors seated after the charges pertaining to a second victim were dismissed. There is no basis for concluding that the dismissal of those charges resulted in the jury being prejudiced against defendant, and thus any such motion had "little or no chance of success" (People v Nuffer, 70 AD3d 1299, 1300 [4th Dept 2010]).
Inasmuch as the record does not establish that defendant exhausted his peremptory challenges, he is not entitled to reversal based on the alleged errors during jury selection (see CPL 270.20[2] ). We reject defendant's contention that he was denied effective assistance of counsel based upon defense counsel's failure to challenge the relevant prospective jurors inasmuch as defendant failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge those prospective jurors (seePeople v. Slack, 137 A.D.3d 1568, 1570, 27 N.Y.S.3d 301 [4th Dept. 2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016]; People v. Boykins, 134 A.D.3d 1542, 1542, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ; People v. Swan, 126 A.D.3d 1527, 1527, 4 N.Y.S.3d 462 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ). Contrary to defendant's related contention, defense counsel was not ineffective for failing to move for a mistrial or to have a new panel of jurors seated after the charges pertaining to a second victim were dismissed.
Defendant appealed from the judgment of conviction, contending, inter alia, that he was improperly sentenced as a PFO because the court erred in determining that defendant's "history and character" and the nature and circumstances of his criminal conduct indicated that extended incarceration and life-time supervision would best serve the public interest. We affirmed, concluding that defendant's "sentence is not unduly harsh or severe," and that " ‘[t]he court properly exercised its discretion when it adjudicated defendant a persistent felony offender and sentenced him accordingly’ " ( People v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ).Postconviction Motions For Resentencing :
MEMORANDUM AND ORDERMemorandum:Defendant appeals from a judgment convicting her upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ), tampering with physical evidence (§ 215.40[2] ), and endangering the welfare of a child (§ 260.10[1] ). Although we agree with defendant that the People improperly delayed turning over certain Rosario material, we conclude that she failed to demonstrate substantial prejudice as a result thereof, and she is therefore not entitled to a new hearing or reversal of the judgment of conviction (seePeople v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ; People v. Carota, 93 A.D.3d 1072, 1077, 941 N.Y.S.2d 302 [3d Dept. 2012] ; People v. Lluveres, 15 A.D.3d 848, 849, 789 N.Y.S.2d 371 [4th Dept. 2005], lv denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 [2005] ; People v. Collins, 283 A.D.2d 437, 438, 723 N.Y.S.2d 880 [2d Dept. 2001], lv dismissed 96 N.Y.2d 934, 733 N.Y.S.2d 369, 759 N.E.2d 368 [2001], lv denied 97 N.Y.2d 703, 739 N.Y.S.2d 103, 765 N.E.2d 306 [2002] ). We reject defendant's contention that County Court erred in limiting the cross-examination of a police officer.
Contrary to defendant's related contention, New York's PFO statute is constitutional on its face and as applied in this case (seePeople v. Giles, 24 N.Y.3d 1066, 1068, 2 N.Y.S.3d 30, 25 N.E.3d 943 [2014], cert denied ––– U.S. ––––, 136 S.Ct. 32, 193 L.Ed.2d 46 [2015] ; People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026 [2010], cert denied 565 U.S. 828, 132 S.Ct. 123, 181 L.Ed.2d 46 [2011] ; People v. Cehfus, 140 A.D.3d 1644, 1645, 33 N.Y.S.3d 621 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ). We further conclude that defendant's sentence is not unduly harsh or severe and that the court properly exercised its discretion in adjudicating defendant a PFO (seePeople v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ). "Defendant's ‘history and character ... and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest’ " ( People v. Prindle, 129 A.D.3d 1506, 1507 [4th Dept. 2015], affd 29 N.Y.3d 463, 58 N.Y.S.3d 280, 80 N.E.3d 1026 [2017], cert denied ––– U.S. ––––, 138 S.Ct. 514, 199, 199 L.Ed.2d 396 [2017] )
the test is whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied' . . . Parts of jury charges cannot be read alone and in a vacuum' " (People v McDaniels, 19 AD3d 1071, 1071, lv denied 5 NY3d 830). Considering the adequacy of the jury charge as a whole against the background of the evidence presented at the trial (see People v Andujas, 79 NY2d 113, 118), we conclude that the charge here was proper (see People v Waldriff, 46 AD3d 1448, 1448, lv denied 9 NY3d 1040; see also People v Fisher, 101 AD3d 1786, 1787, lv denied 20 NY3d 1098). Finally, contrary to defendant's assertion, New York's persistent felony offender statute is constitutional on its face and as applied in this case (see People v Battles, 16 NY3d 54, 59, cert denied ___ US ___, 132 S Ct 123; People v Tuszynski, 120 AD3d 1568, 1569, lv denied 25 NY3d 954), and the court did not abuse its discretion in sentencing defendant as a persistent felony offender (see People v Boykins, 134 AD3d 1542, 1543). Entered: June 10, 2016
ng the adequacy of the jury charge as a whole against the background of the evidence presented at the trial (see People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754 ), we conclude that the charge here was proper (see People v. Waldriff, 46 A.D.3d 1448, 1448, 847 N.Y.S.2d 795, lv. denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212 ; see also People v. Fisher, 101 A.D.3d 1786, 1787, 956 N.Y.S.2d 391, lv. denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 ). Finally, contrary to defendant's assertion, New York's persistent felony offender statute is constitutional on its face and as applied in this case (see People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied ––– U.S. ––––, 132 S.Ct. 123, 181 L.Ed.2d 46 ; People v. Tuszynski, 120 A.D.3d 1568, 1569, 993 N.Y.S.2d 402, lv. denied 25 N.Y.3d 954, 7 N.Y.S.3d 283, 30 N.E.3d 174 ), and the court did not abuse its discretion in sentencing defendant as a persistent felony offender (see People v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 ). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.