Opinion
637 KA 13-02114
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Troy M. CORDELL, Jr., Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. TROY M. CORDELL, JR., DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
TROY M. CORDELL, JR., DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of insurance fraud in the fourth degree ( Penal Law § 176.15 ) and falsifying business records in the first degree (§ 175.10), defendant contends that the evidence is legally insufficient to establish his intent to defraud. Defendant failed, however, to preserve that contention for our review inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant failed to preserve for our review his procedural challenge to Supreme Court's disposition of his Batson application and, in any event, that challenge lacks merit (see People v. Farrare , 118 A.D.3d 1477, 1477, 989 N.Y.S.2d 202 [4th Dept. 2014], lv denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ). By denying defendant's Batson challenge, the court thereby implicitly determined that the race-neutral explanations given by the prosecutor for exercising peremptory challenges with respect to the two prospective jurors in question were not pretextual (see People v. Jiles , 158 A.D.3d 75, 78, 68 N.Y.S.3d 787 [4th Dept. 2017], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ).
Defendant's contention that he was deprived of a fair trial due to instances of prosecutorial misconduct is for the most part unpreserved because defense counsel did not object to the majority of the alleged improprieties (see People v. Romero , 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ; People v. Maxey , 129 A.D.3d 1664, 1666, 14 N.Y.S.3d 845 [4th Dept. 2015], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016], reconsideration denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ). In any event, we conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Resto , 147 A.D.3d 1331, 1333, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] [internal quotation marks omitted] ). Inasmuch as we conclude that there was no prosecutorial misconduct, we reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to object to certain alleged improprieties (see People v. Townsend , 171 A.D.3d 1479, 1481, 99 N.Y.S.3d 156 [4th Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019] ). With respect to defendant's remaining claims of ineffective assistance of counsel, we conclude that they lack merit and that defendant was afforded "meaningful representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
We also reject defendant's contention that reversal is required based on an alleged mode of proceedings error with respect to the court's handling of a jury note requesting an item not in evidence. The procedure set forth in People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) " ‘is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response’ " ( People v. Williams , 142 A.D.3d 1360, 1362, 38 N.Y.S.3d 342 [4th Dept. 2016], lv denied 28 N.Y.3d 1128, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016], quoting People v. Nealon , 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; see People v. Paul , 171 A.D.3d 1555, 1557, 99 N.Y.S.3d 178 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 682, 130 N.E.3d 1292 [2019], reconsideration denied 34 N.Y.3d 983, 113 N.Y.S.3d 669, 137 N.E.3d 39 [2019] ). The note at issue "only necessitated the ministerial action of informing the jury that [the] requested item was not in evidence" ( Williams , 142 A.D.3d at 1362, 38 N.Y.S.3d 342 ). Although the record does not establish whether the court responded to the note, the need for a ministerial response was obviated by the fact that the jury reached a verdict only 23 minutes after making the subject inquiry (see People v. Johnson , 183 A.D.3d 77, 84, 122 N.Y.S.3d 137 [3d Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 631, 149 N.E.3d 392 [2020] ; People v. Murphy , 133 A.D.3d 690, 691, 20 N.Y.S.3d 127 [2d Dept. 2015], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ). We thus conclude that " ‘there was no O'Rama error requiring this Court to reverse the judgment’ " based on the jury note in question ( Paul , 171 A.D.3d at 1557, 99 N.Y.S.3d 178 ).
Finally, we have reviewed the contentions raised in defendant's pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.