Opinion
779 KA 16–01950
07-06-2018
The PEOPLE of the State of New York, Respondent, v. William REED, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, 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 burglary in the second degree ( Penal Law § 140.25[2] ), grand larceny in the third degree (§ 155.35[1] ), and criminal mischief in the fourth degree (§ 145.00[1] ), arising from an incident in which a home was burglarized while the homeowner was at work. The perpetrator broke through two sets of glass doors to gain entry into the dwelling and stole, among other items, jewelry valued in excess of $18,000 from the master bedroom. A blood-stained sweater was discovered on the floor in the master bedroom, and the blood was subsequently linked to defendant through DNA testing.
Defendant contends that County Court erred in denying his motion to dismiss the indictment on speedy trial grounds. Where, as here, a defendant seeks dismissal of the indictment based on the statutory right to a speedy trial and the People respond by identifying periods of time that should be excluded from the speedy trial calculation, the defendant " ‘preserves challenges to the People's reliance on those exclusions for appellate review by identifying any legal or factual impediments to the use of those exclusions’ " ( People v. Allard, 28 N.Y.3d 41, 45, 41 N.Y.S.3d 196, 63 N.E.3d 1140 [2016] ; quoting People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182 [1996] ). In response to defendant's motion, the People alleged, inter alia, that defendant had requested an adjournment during a proceeding on November 4, 2013 and, at an evidentiary hearing, they presented testimony in support of that allegation. At the evidentiary hearing, defendant did not contend, as he does on appeal, that the transcript of the November 4, 2013 proceeding does not support the court's determination that he had requested or consented to the adjournment on that date. Thus, defendant failed to preserve that contention for our review (see People v. Brown, 82 A.D.3d 1698, 1699, 919 N.Y.S.2d 674 [4th Dept. 2011], lv denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 [2011] ; People v. Elijah, 272 A.D.2d 273, 273, 710 N.Y.S.2d 32 [1st Dept. 2000], lv denied 95 N.Y.2d 865, 715 N.Y.S.2d 219, 738 N.E.2d 367 [2000] ; see generally Allard, 28 N.Y.3d at 46–47, 41 N.Y.S.3d 196, 63 N.E.3d 1140 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant further contends that he was deprived of a fair trial by three instances of alleged misconduct by the prosecutor on summation. Defendant correctly concedes, however, that he did not object to any of those alleged instances of prosecutorial misconduct, and thus he failed to preserve his contention for our review (see People v. Lowery, 158 A.D.3d 1179, 1179, 71 N.Y.S.3d 247 [4th Dept. 2018] ; People v. Lewis, 140 A.D.3d 1593, 1595, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant contends that he was deprived of effective assistance of counsel because of numerous alleged errors by defense counsel. We reject defendant's contention that defense counsel was ineffective for failing to object to the alleged prosecutorial misconduct on summation. The prosecutor was entitled "to comment upon every pertinent matter of fact bearing upon the questions the jury [had] to decide" ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] [internal quotation marks omitted]; see generally People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981] ). In any event, even assuming, arguendo, that the prosecutor's comments were improper, we conclude that the alleged misconduct was not so egregious as to deny defendant a fair trial (see People v. Ielfield, 132 A.D.3d 1298, 1299, 18 N.Y.S.3d 229 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ; People v. Hunter, 115 A.D.3d 1330, 1331, 982 N.Y.S.2d 664 [4th Dept. 2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ). Defense counsel was therefore not ineffective for failing to object to the alleged instances of prosecutorial misconduct (see Lowery, 158 A.D.3d at 1180, 71 N.Y.S.3d 247 ; People v. Black, 137 A.D.3d 1679, 1681, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ).
We have considered defendant's remaining claims of ineffective assistance of counsel, and we conclude that he failed to meet his burden of demonstrating "the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Carver, 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ). 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] ).
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 reject defendant's further contention that the verdict is against the weight of the evidence (see People v. Jackson, 66 A.D.3d 1415, 1416, 885 N.Y.S.2d 856 [4th Dept. 2009] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The jury was entitled to infer that defendant had the requisite intent to commit burglary, larceny, and criminal mischief from the evidence that he broke doors to gain entry into the victim's home and removed valuables therefrom without the permission of the owner (see People v. Melendez, 24 A.D.3d 1223, 1223, 805 N.Y.S.2d 914 [4th Dept. 2005], affd 8 N.Y.3d 886, 832 N.Y.S.2d 893, 865 N.E.2d 1 [2007] ; see generally People v. Frumusa, 134 A.D.3d 1503, 1504, 22 N.Y.S.3d 737 [4th Dept. 2015], affd 29 N.Y.3d 364, 57 N.Y.S.3d 103, 79 N.E.3d 495 [2017], rearg d enied 29 N.Y.3d 1110, 2017 WL 3877957 [2017] ). We note that resolution of issues of credibility and the weight to be accorded to the evidence are primarily questions to be determined by the jury (see People v. Abon, 132 A.D.3d 1235, 1236, 17 N.Y.S.3d 206 [4th Dept. 2015], lv denied 27 N.Y.3d 1127, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ), and we perceive no basis for disturbing the jury's determinations in this case.
Finally, the sentence is not unduly harsh or severe.