Opinion
317 KA 18-00617
03-19-2021
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree ( Penal Law § 160.15 [4] ). The charges arose from defendant and an unidentified codefendant robbing a victim at gunpoint as the victim sought to purchase marihuana from defendant.
Defendant contends that Supreme Court erred in admitting in evidence certain custodial statements that he made to a police investigator on the ground that those statements were not included in the pretrial CPL 710.30 notice. That contention is not preserved for our review (see CPL 470.05 [2] ; People v. King , 166 A.D.3d 1562, 1563, 88 N.Y.S.3d 737 [4th Dept. 2018], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 763, 138 N.E.3d 492 [2019] ; People v. Marvin , 162 A.D.3d 1744, 1744, 80 N.Y.S.3d 787 [4th Dept. 2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Defendant likewise failed to preserve for our review his contention that the court's statement to a panel of prospective jurors regarding his status in custody deprived him of a fair trial (see CPL 470.05 [2] ). In any event, that contention is without merit (see People v. Pressley , 156 A.D.3d 1384, 1384, 68 N.Y.S.3d 270 [4th Dept. 2017], amended on rearg 159 A.D.3d 1619, 70 N.Y.S.3d 439 [4th Dept. 2018], lv dismissed 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; see also People v. Wilkins , 175 A.D.3d 867, 869, 107 N.Y.S.3d 521 [4th Dept. 2019] ). Contrary to defendant's related contention, defense counsel was not ineffective for failing to move for a mistrial on that meritless ground (see generally People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; People v. Jenkins , 79 A.D.3d 1767, 1767, 913 N.Y.S.2d 634 [4th Dept. 2010], lv denied 16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011] ). We further conclude that defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel's other alleged shortcomings (see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see also People v. Baker , 14 N.Y.3d 266, 270-271, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh or severe, particularly given that defendant was on probation for the commission of a nearly identical crime at the time he committed the crimes herein.