Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Tedderick A. GILMER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as his motion for a trial order of dismissal at the close of his proof was not specifically directed at the alleged error raised on appeal ( see People v. Beard, 100 A.D.3d 1508, 1509, 953 N.Y.S.2d 805; People v. Neary, 56 A.D.3d 1224, 1224, 868 N.Y.S.2d 438, lv. denied11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447). In any event, defendant's challenge is without merit. At trial, the victim testified that someone broke in the front door to her home, broke a small plexiglass window adjacent to the front door, and stole various items from her home. In addition, the People presented evidence that defendant's fingerprints were found on an unopened window and on a piece of plexiglass from a broken window adjacent to the front door. The People also presented evidence that defendant told the police that he went to the victim's home for the purpose of breaking in and that he unsuccessfully tried to open a window to the home, but that he never entered the home. Contrary to defendant's contention, the evidence is legally sufficient to establish that he “must have engaged in conduct that came dangerously near commission of the completed crime” of burglary in the second degree (People v. Naradzay, 11 N.Y.3d 460, 466, 872 N.Y.S.2d 373, 900 N.E.2d 924, rearg. dismissed 17 N.Y.3d 840, 930N.Y.S.2d 535, 954 N.E.2d 1160 [internal quotation marks omitted]; see People v. Van Etten, 162 A.D.2d 976, 976–977, 557 N.Y.S.2d 202, lv. denied76 N.Y.2d 1025, 565 N.Y.S.2d 775, 566 N.E.2d 1180). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime in this bench trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see People v. Gaines, 26 A.D.3d 742, 742–743, 808 N.Y.S.2d 520, lv. denied6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant failed to preserve for our review his contention that he did not waive his Miranda rights before making a statement to the police ( see generally People v. Rumrill, 40 A.D.3d 1273, 1274, 836 N.Y.S.2d 333, lv. denied9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900; People v. Hightower, 39 A.D.3d 1247, 1248, 834 N.Y.S.2d 768, lv. denied9 N.Y.3d 845, 840 N.Y.S.2d 771, 872 N.E.2d 884). In any event, defendant's contention lacks merit. “Where, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, ‘no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights' ” (People v. Goncalves, 288 A.D.2d 883, 884, 732 N.Y.S.2d 765, lv. denied97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159, quoting People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479; see People v. Hale, 52 A.D.3d 1177, 1178, 859 N.Y.S.2d 838).
Defendant contends that he was denied his right to counsel when the police questioned him concerning the instant crime while he was in custody and represented by counsel in another case. We reject that contention. According to the testimony of a police detective at the Huntley hearing, defendant had been sentenced on an unrelated case before the detective questioned him regarding this crime, and “[Supreme] Court therefore properly determined that the police were not precluded from questioning him regarding the instant crime [ ]” (People v. Koonce, 111 A.D.3d 1277, 1278, 974 N.Y.S.2d 207; see People v. Robles, 72 N.Y.2d 689, 695, 536 N.Y.S.2d 401, 533 N.E.2d 240).
We reject defendant's contention that he was denied effective assistance of counsel during the pretrial plea negotiations on the ground that defense counsel allegedly failed to inform him of the prosecution's plea offer. Here, the record establishes that defense counsel informed defendant of the plea offer in writing and during a meeting shortly before defendant provided testimony to the grand jury, and thus defendant is unable to meet his burden of establishing “ ‘that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer’ ” (People v. Fernandez, 5 N.Y.3d 813, 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144; see People v. Howard, 12 A.D.3d 1127, 1128, 785 N.Y.S.2d 632). Contrary to defendant's further contention, reversal is not warranted on the ground that defense counsel took a position adverse to defendant in contradicting defendant's assertion that he failed to inform defendant of the plea offer. The court cured any prejudice to defendant by assigning new counsel for defendant and conducting a hearing on the issue whether defendant's initial attorney failed to inform him of the plea offer ( see People v. Stephens, 291 A.D.2d 841, 841–842, 737 N.Y.S.2d 889; People v. Santana, 156 A.D.2d 736, 737, 550 N.Y.S.2d 356; see generally People v. Lewis, 2 N.Y.3d 224, 228–229, 777 N.Y.S.2d 798, 809 N.E.2d 1106).
Finally, we conclude that the court did not abuse its discretion in directing that defendant's sentence was to run consecutively to, rather than concurrently with, a sentence imposed for an unrelated conviction ( seePenal Law § 70.25[2–b]; see generally People v. Elder, 71 A.D.3d 1483, 1484, 896 N.Y.S.2d 559, lv. denied16 N.Y.3d 743, 917 N.Y.S.2d 624, 942 N.E.2d 1049, reconsideration denied16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.