Opinion
1544 KA 16–00774
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Eric D. ROBINSON, Defendant–Appellant.
VAN HENRI WHITE, ROCHESTER, FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
VAN HENRI WHITE, ROCHESTER, FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of strangulation in the second degree ( Penal Law § 121.12 ) and harassment in the second degree (§ 240.26[1] ) based on an altercation he had with his adult son (victim). We reject defendant's contention that he was denied effective assistance of counsel by his attorney's failure to object to leading questions asked by the prosecutor, both because he has not established the absence of a strategic or other legitimate basis for the alleged failure (see People v. Madison , 106 A.D.3d 1490, 1492, 964 N.Y.S.2d 820 [4th Dept. 2013] ; People v. Leary , 145 A.D.2d 732, 734, 535 N.Y.S.2d 471 [3d Dept. 1988], lv denied 73 N.Y.2d 1017, 541 N.Y.S.2d 772, 539 N.E.2d 600 [1989] ; see generally People v. Pavone , 26 N.Y.3d 629, 646–647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ), and because any error was not so egregious and prejudicial as to deny him a fair trial (see People v. Inoa , 109 A.D.3d 765, 766, 971 N.Y.S.2d 530 [1st Dept. 2013], affd 25 N.Y.3d 466, 13 N.Y.S.3d 329, 34 N.E.3d 839 [2015] ; People v. Lester , 124 A.D.2d 1052, 1052, 508 N.Y.S.2d 741 [4th Dept. 1986], lv denied 69 N.Y.2d 830, 513 N.Y.S.2d 1037, 506 N.E.2d 548 [1987] ; see generally People v. Benevento , 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Defendant further contends that County Court erred in failing to issue adequate curative instructions in response to two instances of testimony by the victim implying that defendant had a drug problem. That contention is not preserved for our review, inasmuch as the court issued a curative instruction in response to the first instance of testimony at issue and defendant did not object to the instruction or seek further relief (see People v. Townsend , 100 A.D.3d 1029, 1030, 954 N.Y.S.2d 221 [2d Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ; see generally People v. Heide , 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ), and defendant did not object to the other instance of challenged testimony or request any instruction in response thereto (see People v. Stubbs , 96 A.D.3d 1448, 1449, 946 N.Y.S.2d 370 [4th Dept. 2012], lv denied 19 N.Y.3d 1001, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012]; see generally People v. Nicholson , 26 N.Y.3d 813, 830, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). To the extent that defendant contends that his attorney was ineffective in failing to seek further curative instructions, we reject that contention (see generally People v. Rogers , 70 A.D.3d 1340, 1340–1341, 894 N.Y.S.2d 313 [4th Dept. 2010], lv denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010], cert denied 562 U.S. 969, 131 S.Ct. 475, 178 L.Ed.2d 302 [2010] ). Viewing defense counsel's representation in its totality, we conclude that defendant was afforded meaningful representation (see People v. Wragg , 26 N.Y.3d 403, 412, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015] ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's contention, the court properly denied that part of his CPL 330.30 motion to set aside the verdict in which he alleged that the People committed Brady and Rosario violations in failing to disclose records of a 911 call made by the victim regarding an incident that occurred prior to his altercation with defendant. Inasmuch as the Brady and Rosario claims were based on material outside the trial record, they were not reviewable pursuant to CPL 330.30(1) (see People v. Wolf , 98 N.Y.2d 105, 118–119, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ; People v. Satlin , 142 A.D.3d 920, 920, 37 N.Y.S.3d 885 [1st Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Nichols , 35 A.D.3d 508, 509, 826 N.Y.S.2d 359 [2d Dept. 2006], lv denied 8 N.Y.3d 925, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ), and "the court had no obligation to convert" the relevant part of the motion to one pursuant to CPL article 440 ( People v. Spirles , 294 A.D.2d 810, 811, 742 N.Y.S.2d 457 [4th Dept. 2002], lv denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562 [2002], reconsideration denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 [2002] ; cf. People v. Toland , 2 A.D.3d 1053, 1055–1056, 770 N.Y.S.2d 148 [3d Dept. 2003], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004] ). In any event, although defendant made a specific pretrial discovery request for 911 records, there is no reasonable possibility that the nondisclosure of the records contributed to his conviction, and he thus "failed to establish materiality under Brady or prejudice under Rosario " ( People v. Switts , 148 A.D.3d 1610, 1612, 52 N.Y.S.3d 178 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017]; see CPL 240.75 ; People v. Daniels , 115 A.D.3d 1364, 1365, 982 N.Y.S.2d 689 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ; People v. Clarke , 242 A.D.2d 948, 948, 665 N.Y.S.2d 375 [4th Dept. 1997], lv denied 91 N.Y.2d 924, 670 N.Y.S.2d 406, 693 N.E.2d 753 [1998] ).
Finally, we reject defendant's contention that the verdict is against the weight of the evidence with respect to the count charging strangulation in the second degree (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; 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 credit the testimony of the victim over that of the main defense witness on the issues of justification and whether the victim lost consciousness (see People v. Ryder , 146 A.D.3d 1022, 1025, 44 N.Y.S.3d 598 [3d Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ; People v. Wilmot , 60 A.D.3d 1454, 1454, 876 N.Y.S.2d 292 [4th Dept. 2009], lv denied 12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009], reconsideration denied 13 N.Y.3d 864, 891 N.Y.S.2d 698, 920 N.E.2d 103 [2009] ; see generally People v. Reyes , 144 A.D.3d 1683, 1684–1685, 42 N.Y.S.3d 704 [4th Dept. 2016] ), and defendant's intent to impede the victim's normal breathing could be inferred from the evidence that he applied pressure to the victim's neck (see People v. Peterson , 118 A.D.3d 1151, 1154, 988 N.Y.S.2d 271 [3d Dept. 2014], lv denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ; Matter of Jesse Z. , 116 A.D.3d 1105, 1107–1108, 983 N.Y.S.2d 651 [3d Dept. 2014] ; see generally People v. Bracey , 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977], rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194 [1977] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.