Opinion
11-18-2015
The PEOPLE, etc., respondent, v. Frederick ROBERSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Josette Simmons McGhee of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Josette Simmons McGhee of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered March 13, 2013, convicting him of burglary in the second degree, criminal mischief in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial because the People, in violation of the Supreme Court's suppression order, elicited testimony from the complainant that she recognized the defendant as the burglar at the scene of the arrest. This contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, the subject testimony, which was elicited during the redirect examination of the complainant, did not deprive the defendant of a fair trial, since defense counsel opened the door to this issue on cross-examination (see People v. Massie, 2 N.Y.3d 179, 180, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ; People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ; People v. Wende, 122 A.D.3d 884, 996 N.Y.S.2d 672 ; People v. Prowse, 60 A.D.3d 703, 875 N.Y.S.2d 121 ).
Moreover, we reject the defendant's contention that his trial counsel's decision to open the door to the admission of this previously suppressed evidence denied him the effective assistance of counsel. The defendant failed to show that his trial counsel's tactics lacked a legitimate strategic purpose and that the risks of opening the door to such evidence outweighed its tactical advantages (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Trovato, 68 A.D.3d 1023, 1024, 891 N.Y.S.2d 453 ; People v. Pennington, 27 A.D.3d 269, 270, 811 N.Y.S.2d 36 ; People v. Taylor, 300 A.D.2d 746, 748, 751 N.Y.S.2d 662 ). "The fact that trial counsel's tactics were unsuccessful does not constitute ineffective assistance of counsel" (People v. Trovato, 68 A.D.3d at 1024, 891 N.Y.S.2d 453 ; see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 ). Indeed, viewing the record as a whole, we find that the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Clemente, 84 A.D.3d 829, 830–831, 922 N.Y.S.2d 193 ; People v. Charles, 57 A.D.3d 556, 556, 869 N.Y.S.2d 564 ; People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135 ). In any event, the challenged remarks were either fair comment on the evidence, responsive to the arguments presented in defense counsel's summation, reasonable inferences drawn from the evidence, or within the broad bounds of permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. McDonald, 82 A.D.3d 1125, 918 N.Y.S.2d 784 ).
The defendant's contention that the evidence was legally insufficient to support the conviction of criminal mischief in the fourth degree is also unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Wende, 122 A.D.3d 884, 996 N.Y.S.2d 672 ; People v. Judge, 101 A.D.3d 902, 954 N.Y.S.2d 906 ; People v. McDaniel, 84 A.D.3d 1410, 924 N.Y.S.2d 293 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to support that conviction (see People v. Douglas, 291 A.D.2d 455, 737 N.Y.S.2d 545 ; People v. Bodine, 231 A.D.2d 840, 648 N.Y.S.2d 394 ; see generally Matter of Carlos M., 32 A.D.3d 686, 687, 820 N.Y.S.2d 581 ). Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Douglas, 291 A.D.2d 455, 737 N.Y.S.2d 545 ; cf. People v. Terborg, 35 A.D.3d 1169, 825 N.Y.S.2d 897 ).