Opinion
2017–12917 Ind. No. 16–00742
04-06-2022
The PEOPLE, etc., respondent, v. Lee DRAGANI, appellant.
Steven A. Feldman, Manhasset, NY (Arza Feldman of counsel), for appellant, and appellant pro se. Miriam E. Rocah, District Attorney, White Plains, NY (Jordan K. Hummel, Christine DiSalvo, and William C. Milaccio of counsel), for respondent.
Steven A. Feldman, Manhasset, NY (Arza Feldman of counsel), for appellant, and appellant pro se.
Miriam E. Rocah, District Attorney, White Plains, NY (Jordan K. Hummel, Christine DiSalvo, and William C. Milaccio of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Helen M. Blackwood, J.), rendered November 8, 2017, convicting him of robbery in the first degree, robbery in the second degree, burglary in the first degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved for appellate review his contention that the Supreme Court erred by permitting an investigating detective, who was not a witness to the crime in question, to testify that he had "interacted" with the defendant in the community more than 30 times and that he believed an individual shown in certain surveillance videos was the defendant. However, that contention is without merit. The defendant's contention that the admission of this testimony deprived him of his constitutional right to a fair trial is unpreserved for appellate review because he did not assert a constitutional violation at trial (see CPL 470.05[2] ), and in any event, that contention is also without merit. This testimony was relevant to the issue of identity (see People v. Martinez, 164 A.D.3d 1260, 1262, 83 N.Y.S.3d 677 ; People v. Daniels, 140 A.D.3d 1083, 1084, 34 N.Y.S.3d 161 ; People v. Ray, 100 A.D.3d 933, 954 N.Y.S.2d 199 ; People v. Vega, 37 A.D.3d 351, 352, 831 N.Y.S.2d 376 ; People v. Prescott, 300 A.D.2d 325, 751 N.Y.S.2d 507 ; People v. Johnson, 215 A.D.2d 258, 626 N.Y.S.2d 775 ) and did not deprive the defendant of a fair trial since it did not implicate him in any prior misconduct or uncharged crime (see People v. Martinez, 164 A.D.3d at 1262, 83 N.Y.S.3d 677 ; People v. Woody, 9 A.D.3d 439, 780 N.Y.S.2d 168 ). The defendant's contention that the prosecutor improperly elicited on redirect examination of the detective that the defendant had been incarcerated is unpreserved for appellate review (see CPL 470.05[2] ). The defendant also waived this contention by defense counsel's affirmative use of that testimony in summation as part of his defense strategy (see People v. Clark, 171 A.D.3d 942, 943, 97 N.Y.S.3d 711 ; People v. Picart, 171 A.D.3d 799, 801, 97 N.Y.S.3d 185 ; People v. Bryan, 50 A.D.3d 1049, 1051, 856 N.Y.S.2d 227 ; People v. Holmes, 47 A.D.3d 946, 946, 850 N.Y.S.2d 571 ; People v. Mims, 30 A.D.3d 539, 541, 817 N.Y.S.2d 356 ; People v. Blackman, 13 A.D.3d 640, 641, 789 N.Y.S.2d 57 ; People v. Samuels, 143 A.D.2d 856, 533 N.Y.S.2d 491 ). In any event, defense counsel opened the door to this statement by eliciting on cross-examination that the detective had not seen the defendant in the community in the past two years. The People were thus entitled to question the detective on redirect examination regarding why he had not seen the defendant in the last two years (see People v. Massie, 2 N.Y.3d 179, 180–181, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ; People v. Rojas, 97 N.Y.2d 32, 39, 735 N.Y.S.2d 470, 760 N.E.2d 1265 ; People v. Melendez, 55 N.Y.2d 445, 452, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ; People v. McClinton, 187 A.D.3d 1056, 1057, 131 N.Y.S.3d 249 ; People v. De Los Angeles, 270 A.D.2d 196, 201, 707 N.Y.S.2d 16, affd sub nom. People v. Collins, 96 N.Y.2d 837, 729 N.Y.S.2d 433, 754 N.E.2d 192 ).
Contrary to the People's contention, the defendant preserved for appellate review his challenge to a complainant's testimony that the defendant had been incarcerated by moving for a mistrial on the specific grounds he raises on appeal (see CPL 470.05[2] ). However, the Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial. While error, the challenged testimony was brief and immediately addressed by the court, which struck the challenged testimony and provided the jury with a curative instruction sufficient to dispel any prejudice (see People v. Murphy, 151 A.D.3d 888, 889, 53 N.Y.S.3d 835 ; People v. Johnson, 139 A.D.3d 967, 975, 34 N.Y.S.3d 62, affd 31 N.Y.3d 942, 73 N.Y.S.3d 113, 96 N.E.3d 209 ; People v. Sanders, 51 A.D.3d 825, 858 N.Y.S.2d 291 ; People v. Brescia, 41 A.D.3d 613, 836 N.Y.S.2d 432 ; People v. Smith, 23 A.D.3d 415, 804 N.Y.S.2d 774 ).
The defendant's contention that the Supreme Court improperly considered his courtroom conduct as a basis for sentencing is unpreserved for appellate review and, in any event, without merit (see generally People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 ). The defendant also failed to preserve for appellate review his contention that the sentence imposed improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Thompson, 119 A.D.3d 966, 968, 989 N.Y.S.2d 881 ). In any event, this contention is without merit (see People v. Cherry, 127 A.D.3d 879, 881, 5 N.Y.S.3d 527 ; People v. Romero, 101 A.D.3d 906, 907, 955 N.Y.S.2d 214 ). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
To the extent that the defendant contends, in his pro se supplemental brief, that the Supreme Court erred in failing to give a missing witness charge, that contention is unpreserved for appellate review, as the defendant never requested such a charge (see People v. Pressley, 200 A.D.3d 1716, 155 N.Y.S.3d 907 ; see generally People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 ), and we decline to reach the contention in the exercise of our interest of justice jurisdiction.
The defendant's contention, raised in his main brief and in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's remaining contention is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.