Opinion
87 KA 16-00386
02-04-2022
The PEOPLE of the State of New York, Respondent, v. Jerrod L. HUNTER, Defendant-Appellant.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, 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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ), assault in the first degree (§ 120.10 [1]) and criminal possession of a weapon in the third degree ([CPW 3d] § 265.02 [1]). Contrary to defendant's contention, there was no defect in the grand jury proceedings. Even assuming, arguendo, that the grand jurors saw a document referencing defendant's prior conviction that was used to refresh the recollection of a witness, we note that one of the elements of CPW 3d is that the defendant "has been previously convicted of any crime" (id. ). Where, as here, "a prior conviction elevates an offense, it is not an improper procedure to present proof of the prior conviction to the [g]rand [j]ury along with the remainder of the evidence concerning the defendant's alleged commission of the offense" ( People v. Adorno , 216 A.D.2d 686, 687, 628 N.Y.S.2d 426 [3d Dept. 1995], lv denied 86 N.Y.2d 839, 634 N.Y.S.2d 449, 658 N.E.2d 227 [1995] ; see People v. Murray , 163 A.D.3d 1000, 1000-1001, 82 N.Y.S.3d 455 [2d Dept. 2018], lv denied 32 N.Y.3d 1208, 99 N.Y.S.3d 197, 122 N.E.3d 1110 [2019] ). To the extent defendant contends that Supreme Court erred in denying his CPL 440.10 motion, that contention is not properly before us inasmuch as defendant "did not obtain leave to appeal" the denial of that motion ( People v. Acosta , 19 A.D.3d 1041, 1041, 796 N.Y.S.2d 289 [4th Dept. 2005], lv denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 [2005] ; see People v. Fuller , 124 A.D.3d 1394, 1395, 998 N.Y.S.2d 554 [4th Dept. 2015], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ).
Defendant further contends that he was denied effective assistance of counsel based on defense counsel's failure to secure medical expert testimony regarding the nature of the victim's injuries. "It is well established that, ‘[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to’ call such a witness" ( People v. Burgos , 90 A.D.3d 1670, 1670, 937 N.Y.S.2d 483 [4th Dept. 2011], lv denied 19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012], quoting People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Barbuto , 126 A.D.3d 1501, 1504, 6 N.Y.S.3d 369 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ). Defendant failed to do so (see Barbuto , 126 A.D.3d at 1504, 6 N.Y.S.3d 369 ). Moreover, defendant failed to demonstrate "that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence" ( People v. Smith , 126 A.D.3d 1528, 1530-1531, 6 N.Y.S.3d 870 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] [internal quotation marks omitted]). We have considered defendant's remaining allegation of ineffective assistance of counsel and conclude that it does not warrant reversal or modification of the judgment.
Finally, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction of attempted murder in the second degree and assault in the first degree (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, 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 Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).