Opinion
108909
12-20-2018
The PEOPLE of the State of New York, Respondent v. Jaushi‘ir WEAVER, Appellant.
Paul J. Connolly, Delmar, for appellant. P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 31, 2016, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.
During the early morning hours of May 5, 2015, defendant, then age 16, and codefendant Mark Bowman shot into a crowd of people gathered outside of a residential building in the City of Albany in an effort to avenge the murder of Bowman's cousin. Two of the individuals present in the group were struck and injured, and a third victim was fatally wounded by a bullet forensically determined to have been fired from the gun found upon defendant when he was apprehended by police just minutes later. Defendant and Bowman, along with their get-away driver, were thereafter arrested and charged by indictment with various crimes in connection with the shooting. Following a joint Huntley hearing, County Court denied defendant's motion to suppress the statements he made to police and severed his case from that of his codefendants. At the ensuing jury trial, defendant raised the affirmative defense of duress and testified in his own defense. Defendant admitted that he repeatedly fired the gun in the direction of where the group of people were gathered, but claimed that Bowman had directed him to do so and threatened to shoot him and his family if he did not do as he was told. The jury rejected the duress defense and convicted defendant of murder in the second degree and criminal possession of a weapon in the second degree. Sentenced to 22 years to life in prison for the murder conviction and a concurrent 15–year prison term for the weapon conviction, defendant now appeals.
Defendant first alleges the existence of unspecified defects in the grand jury proceeding. As the sufficiency of the trial evidence has not been challenged, it is presumed legally sufficient and, as a result, any "challenges to the grand jury proceeding are precluded to the extent they involve the sufficiency of the evidence presented or the instructions given to the grand jury" ( People v. Secor, 162 A.D.3d 1411, 1413, 80 N.Y.S.3d 511 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ; see People v. Smith, 4 N.Y.3d 806, 808, 796 N.Y.S.2d 1, 828 N.E.2d 958 [2005] ; People v. Roulhac, 166 A.D.3d 1066, 86 N.Y.S.3d 336, 338 [2018] ; People v. Robinson, 156 A.D.3d 1123, 1128 n. 8, 67 N.Y.S.3d 709 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). Our review of the grand jury minutes otherwise fails to reveal the existence of any defects that impaired the integrity of the grand jury or prejudiced defendant so as to warrant the drastic remedy of dismissal of the indictment (see People v. Wisdom, 23 N.Y.3d 970, 972, 989 N.Y.S.2d 678, 12 N.E.3d 1107 [2014] ; People v. Secor, 162 A.D.3d at 1413, 80 N.Y.S.3d 511 ; People v. Fields, 160 A.D.3d 1116, 1118 n. 1, 75 N.Y.S.3d 617 [2018], lvs denied 31 N.Y.3d 1116, 1120, 81 N.Y.S.3d 376, 379, 106 N.E.3d 759, 762 [2018] ). Defendant next claims that County Court erred in denying his application, made on the eve of trial, for funds to hire a psychological expert to examine him and testify relative to his duress defense. To succeed on a motion for funds pursuant to County Law § 722–c, it was incumbent upon defendant "to show that he was indigent, that the service was necessary to his defense and, if the compensation he sought exceeded the statutory limit of $1,000, that extraordinary circumstances justified the expenditure" ( People v. Clarke, 110 A.D.3d 1341, 1342, 975 N.Y.S.2d 194 [2013], lv denied 22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 [2014] ; see People v. Brand, 13 A.D.3d 820, 821, 787 N.Y.S.2d 169 [2004], lv de nied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ). Here, defendant's application sought funds for the purpose of securing expert testimony to explain why he "would succumb to the pressure of an older, more dominant male in his peer group." Although such testimony may well have been helpful to defendant's duress defense, he failed to demonstrate a "distinct necessity" for the assistance of an expert to aid the jury in resolving that issue ( People v. Dove, 287 A.D.2d 806, 807, 731 N.Y.S.2d 769 [2001] ; accord People v. Clarke, 110 A.D.3d at 1342, 975 N.Y.S.2d 194 ; see People v. Casiano, 40 A.D.3d 528, 529, 837 N.Y.S.2d 76 [2007], lv denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023 [2007] ; People v. Gallow, 171 A.D.2d 1061, 1062–1063, 569 N.Y.S.2d 530 [1991], lv denied 77 N.Y.2d 995, 571 N.Y.S.2d 920, 575 N.E.2d 406 [1991] ; People v. Wright, 161 A.D.2d 743, 743, 558 N.Y.S.2d 842 [1990] ; cf. People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983] ). Moreover, defendant was able to present his duress defense through his own trial testimony and to expound upon it through his cross-examination of witnesses and closing arguments to the jury (see People v. Gallow, 171 A.D.2d at 1062–1063, 569 N.Y.S.2d 530 ; compare People v. Rodriguez, 6 A.D.3d 814, 817–818, 776 N.Y.S.2d 105 [2004] ). We further note that "the application made no claim or showing of extraordinary circumstances, nor did it indicate whether the compensation sought would exceed $1,000 or detail the time to be spent" by the expert ( People v. Clarke, 110 A.D.3d at 1342, 975 N.Y.S.2d 194 ; see People v. Dearstyne, 305 A.D.2d 850, 852–853, 761 N.Y.S.2d 118 [2003], lv denied 100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 [2003] ; People v. Dove, 287 A.D.2d at 807, 731 N.Y.S.2d 769 ). In light of the foregoing, we cannot say that County Court abused its discretion in denying defendant's application.
We are similarly unconvinced that County Court erred in refusing to suppress certain statements that defendant made to police during his recorded interrogation. Defendant does not dispute that he validly waived his Miranda rights at the outset of the interview, but contends that his waiver was rendered ineffective by subsequent police conduct during the course of the interrogation. Having failed to raise this specific argument in his motion papers or at the Huntley hearing as a ground for suppression, defendant did not preserve the issue for our review (see People v. Schluter, 136 A.D.3d 1363, 1363, 24 N.Y.S.3d 478 [2016], lv denied 27 N.Y.3d 1138, 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016]; People v. Johnson, 117 A.D.3d 637, 638, 987 N.Y.S.2d 312 [2014], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). In any event, the Court of Appeals has rejected the "novel theory" now advanced by defendant – that is, "that the validity of the [Miranda ] waiver [could be] vitiated by police misconduct that occurred after the waiver" ( Matter of Jimmy D., 15 N.Y.3d 417, 424, 912 N.Y.S.2d 537, 938 N.E.2d 970 [2010] ). Where, as here, a defendant's "Miranda rights were validly waived and never reinvoked, the issue is voluntariness, not waiver" ( id. ). Whether defendant's statements were voluntary – an issue that was properly preserved – is to be determined "by examining the totality of the circumstances under which [they were] obtained" ( People v. Moore, 162 A.D.3d 1123, 1126, 78 N.Y.S.3d 486 [2018] ; see Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 [2000] ; People v. Guilford, 21 N.Y.3d 205, 208, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013] ). Upon our review of the recorded interview and the testimony adduced at the Huntley hearing, we conclude that the People satisfied their burden of demonstrating the voluntariness of defendant's statements beyond a reasonable doubt (see People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ; People v. Cummings, 157 A.D.3d 982, 985, 69 N.Y.S.3d 394 [2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ).
We note that courts in other jurisdictions have embraced the theory advanced by defendant (see e.g. People v. McKee, 2018 Mich.App LEXIS 375, at *31-35, 2018 WL 1072808, *11–12 [2018] ; Leger v. Commonwealth, 400 S.W.3d 745, 750–751 [Ky. 2013] ; Lee v. State, 418 Md. 136, 156–157, 12 A.3d 1238, 1250–1251 [2011] ; Spence v. State, 281 Ga. 697, 698–701, 642 S.E.2d 856, 857–858 [2007] ; State v. Pillar, 359 N.J. Super 249, 262, 268, 820 A.2d 1, 8, 11–12 [2003] ; Hopkins v. Cockrell, 325 F.3d 579, 584–585 [5th Cir. 2003], cert denied 540 U.S. 1173, 124 S.Ct. 1198, 157 L.Ed.2d 1226 [2004] ; State v. Stanga, 2000 SD 129, ––––, 617 N.W.2d 486, 490–491 [2000] ). Our highest court has not, however, and we are therefore constrained to assess the admissibility of defendant's statements under the traditional voluntariness standard.
The circumstances and atmosphere of the interview fail to demonstrate involuntariness. Although defendant was detained for approximately 16½ hours, that fact, without more, does not render his statements involuntary (see People v. Jin Cheng Lin, 26 N.Y.3d 701, 723–725, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016] ; People v. Tarsia, 50 N.Y.2d 1, 12–13, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ; People v. Case, 150 A.D.3d 1634, 1638, 54 N.Y.S.3d 475 [2017] ; People v. McWilliams, 48 A.D.3d 1266, 1267, 852 N.Y.S.2d 523 [2008], lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008] ). The questioning was intermittent, with several lengthy breaks that afforded defendant the opportunity to sleep in solitude, and defendant was provided with food and water and permitted to use the restroom (see People v. Sands, 164 A.D.3d 613, 614, 82 N.Y.S.3d 599 [2018], lv de ni e d 32 N.Y.3d 1068, 89 N.Y.S.3d 122, 113 N.E.3d 956 [2018] ; People v. Clark, 139 A.D.3d 1368, 1369, 31 N.Y.S.3d 357 [2016], lvs d e nied 28 N.Y3d 928, 930, 40 N.Y.S.3d 356, 358, 63 N.E.3d 76, 78 [2016]; People v. DeCampoamor, 91 A.D.3d 669, 670, 936 N.Y.S.2d 256 [2012], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 648, 968 N.E.2d 1004 [2012] ). No threats were uttered, and defendant was not subjected to physical abuse or mistreatment. As defendant was legally an adult, "there was no requirement that his family be present during police questioning" ( People v. Page, 225 A.D.2d 831, 833, 638 N.Y.S.2d 985 [1996], lv denied 88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428 [1996] ; see People v. Wells, 18 A.D.3d 1022, 1024, 795 N.Y.S.2d 383 [2005], lv denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ; People v. Insonia, 277 A.D.2d 819, 820, 716 N.Y.S.2d 791 [2000], lv denied 96 N.Y.2d 735, 722 N.Y.S.2d 802, 745 N.E.2d 1025 [2001] ), and there is no evidence that defendant was isolated from his mother as a result of "official deception or trickery" ( People v. Salaam, 83 N.Y.2d 51, 55, 607 N.Y.S.2d 899, 629 N.E.2d 371 [1993] ; see People v. Huff, 133 A.D.3d 1223, 1225, 19 N.Y.S.3d 378 [2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; People v. Harvey, 70 A.D.3d 1454, 1455, 894 N.Y.S.2d 622 [2010], lv denied 15 N.Y.3d 750, 906 N.Y.S.2d 823, 933 N.E.2d 222 [2010] ; People v. Insonia, 277 A.D.2d at 820, 716 N.Y.S.2d 791 ). Further, the tactics used by the detectives in encouraging defendant to "be a man" and to "do the right thing" cannot be deemed improper "where, as here, there is no evidence that defendant was of subnormal intelligence or susceptible to suggestion" ( People v. Clark, 139 A.D.3d at 1369, 31 N.Y.S.3d 357 ; accord People v. Deitz, 148 A.D.3d 1653, 1654, 50 N.Y.S.3d 726 [2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ).
Nor are we persuaded that certain assurances of confidentiality by the police during the course of the interrogation rendered defendant's ensuing statements involuntary under either constitutional (see CPL 60.45[2][b][ii] ; Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 [1991] ) or statutory standards (see CPL 60.45[2][b][i] ). A little more than an hour into the interview, defendant admitted to detectives that he fired the gun into the crowd of people gathered across the street. The questioning that followed was aimed at ascertaining the identity of the other shooter, who was depicted on video surveillance taken from a City-owned pole camera. During the course of that questioning, one of the detectives stated to defendant that "this conversation is in this room." This detective made a similar assurance to defendant several hours later. He also made statements to the effect that the only way the conversation would "get around" is if defendant "r[a]n out of [the interrogation] room and [told] people"; that "as far as anyone else is concerned, the only way this conversation is going to get out there is if you go out and tell them"; and "do you think that [the other detective] and I are [going to] run out and tell people?" Eventually, defendant identified Bowman as the other shooter. He also made certain statements that he claims undermined his duress defense, including that he was neither afraid of nor threatened by Bowman prior to the shooting.
Despite defendant's protestations to the contrary, we find it apparent from the relevant portions of the interview that the statements regarding confidentiality related only to defendant's disclosure of the identity of the other shooter and his expressed fear that his revelation in that regard would be shared with other members of the community. As previously noted, the first such assurance of confidentiality was made after defendant freely admitted his role in the shooting, and the interrogation thereafter focused almost exclusively on eliciting the identity of the second shooter. During that time, defendant repeatedly expressed his fear of being labeled a "rat" and a "snitch" and, at one point, pleaded that he did not want to "make [his life] short" by it being "out there" that he gave up the other assailant or spoke with the police generally. The detective's express and implied assurances of confidentiality were plainly directed at – and, in all but one instance, were uttered on the heels of – these concerns voiced by defendant. There is nothing in this record to indicate that defendant – who did not testify at the Huntley hearing – believed or could reasonably have believed the detective's statements to mean that any and all statements he made would remain confidential for all purposes.
Even if the detective's statements could be viewed as an unqualified promise not to divulge any of defendant's subsequent statements, it cannot be said that such a promise gave rise to a "substantial risk that ... defendant might falsely incriminate himself" ( CPL 60.45[2][b][i] ). Defendant had already implicated himself in the murder, and there is no basis in this record to conclude that the detective's remarks would have deceived defendant into thinking that he would not be prosecuted or that he would receive lenient treatment (see Matter of Jimmy D., 15 N.Y.3d at 424, 912 N.Y.S.2d 537, 938 N.E.2d 970 ; People v. Neal, 133 A.D.3d 920, 922, 20 N.Y.S.3d 193 [2015], lvs denied 26 N.Y.3d 1107, 1110, 6 N.Y.S.3d 766, 769, 47 N.E.3d 96, 99 [2016]; People v. Lugo, 60 A.D.3d 867, 868–869, 874 N.Y.S.2d 587 [2009] ). If anything, the assurances of confidentiality would have induced defendant to provide truthful statements, not false ones. Indeed, obtaining a truthful identification of the other shooter was the goal of the interrogation. Nor were the detective's assurances "so fundamentally unfair as to deny due process" ( People v. Tarsia, 50 N.Y.2d at 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 ; see People v. Fagan, 134 A.D.3d 1232, 1234, 21 N.Y.S.3d 456 [2015] ; People v. Jaeger, 96 A.D.3d 1172, 1174, 946 N.Y.S.2d 680 [2012], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ). "Deceptive police conduct may be unduly coercive, but only when it is so ‘extreme’ that it overbears a defendant's individual will" ( People v. Scaringe, 137 A.D.3d 1409, 1412, 27 N.Y.S.3d 712 [2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016], quoting People v. Thomas, 22 N.Y.3d at 642, 985 N.Y.S.2d 193, 8 N.E.3d 308 ; see People v. Jeremiah, 147 A.D.3d 1199, 1203, 47 N.Y.S.3d 490 [2017], lvs denied 29 N.Y.3d 1031, 1033, 62 N.Y.S.3d 300, 302, 84 N.E.3d 972, 974 [2017] ). The detective's statements regarding confidentiality were not so "highly coercive" as to nullify defendant's judgment or overbear his will ( People v. Thomas, 22 N.Y.3d at 642, 985 N.Y.S.2d 193, 8 N.E.3d 308 ; see Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 [1961] ; People v. Jeremiah, 147 A.D.3d at 1203, 47 N.Y.S.3d 490 ; People v. Scaringe, 137 A.D.3d at 1412, 27 N.Y.S.3d 712 ; People v. Neal, 133 A.D.3d at 922, 20 N.Y.S.3d 193 ; People v. Pouliot, 64 A.D.3d 1043, 1044, 883 N.Y.S.2d 372 [2009], lv denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009] ; People v. McLean, 59 A.D.3d 861, 863, 875 N.Y.S.2d 283 [2009], affd 15 N.Y.3d 117, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ). Considering the totality of the circumstances, the record supports the conclusion that defendant's statements resulted from his "free and unconstrained choice" ( People v. Thomas, 22 N.Y.3d at 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [internal quotation marks and citation omitted]; see People v. Jeremiah, 147 A.D.3d at 1203, 47 N.Y.S.3d 490 ; People v. Cruz, 138 A.D.3d 1310, 1312, 30 N.Y.S.3d 370 [2016] ; People v. Scaringe, 137 A.D.3d at 1412, 27 N.Y.S.3d 712 ; People v. Neal, 133 A.D.3d at 922, 20 N.Y.S.3d 193 ).
Defendant also claims that County Court should have charged manslaughter in the second degree as a lesser included offense of second degree murder. However, he did not request that the court charge the lesser included offense or object to the jury charge as given (see People v. Dorsey, 151 A.D.3d 1391, 1395, 58 N.Y.S.3d 636 [2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 132, 89 N.E.3d 522 [2017] ; People v. Bost, 139 A.D.3d 1317, 1321, 32 N.Y.S.3d 385 [2016] ). Nor did County Court "expressly decide[ ]" the issue "in re[s]ponse to a protest by a party" ( CPL 470.05[2] ). Instead, the record reflects that defense counsel was indecisive about whether he wanted manslaughter in the second degree to be submitted as a lesser included offense, and that County Court subsequently expressed its opinion that such a submission would be inappropriate under the facts of this case. Defendant did nothing to register any disagreement with that view. Accordingly, defendant's contention in this regard is both waived (see CPL 300.50[1] ; People v. Young, 152 A.D.3d 981, 984, 59 N.Y.S.3d 535 [2017], lv denied 30 N.Y.3d 955, 67 N.Y.S.3d 138, 89 N.E.3d 528 [2017] ) and unpreserved for our review (see People v. Turriago, 90 N.Y.2d 77, 83–84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997] ; People v. Galeano, 111 A.D.3d 537, 537–538, 975 N.Y.S.2d 652 [2015] ; People v. Alvarez, 51 A.D.3d 167, 180, 854 N.Y.S.2d 70 [2008], lv denied 11 N.Y.3d 785, 866 N.Y.S.2d 611, 896 N.E.2d 97 [2008] ; People v. Jones, 265 A.D.2d 159, 160, 696 N.Y.S.2d 38 [1999], lv denied 94 N.Y.2d 824, 702 N.Y.S.2d 594, 724 N.E.2d 386 [1999] ). We decline defendant's request to take corrective action in the interest of justice, particularly given that "the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People's case" ( People v. McGee, 20 N.Y.3d 513, 519, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; see People v. Baker, 14 N.Y.3d 266, 272–273, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ; People v. Lane, 60 N.Y.2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769 [1983] ).
Defendant's remaining arguments are unavailing. With respect to his claim of ineffective assistance of counsel, defense counsel gave cogent opening and closing statements, made appropriate pretrial motions, registered timely objections, effectively cross-examined the People's witnesses, pursued a viable, albeit unsuccessful, duress defense and otherwise zealously represented defendant. Our review of the record as a whole confirms that, "despite any isolated and discrete shortcomings in counsel's performance," defendant received meaningful representation ( People v. Rivers, 152 A.D.3d 1054, 1058, 59 N.Y.S.3d 565 [2017] [internal quotation marks, brackets, ellipsis and citation omitted], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; see People v. Blake, 24 N.Y.3d 78, 81, 996 N.Y.S.2d 585, 21 N.E.3d 214 [2014] ; People v. Richardson, 162 A.D.3d 1328, 1332–1333, 79 N.Y.S.3d 734 [2018] ; People v. Alberts, 161 A.D.3d 1298, 1305–1306, 77 N.Y.S.3d 207 [2018], lv denied 31 N.Y.3d 1114, 81 N.Y.S.3d 374, 106 N.E.3d 757 [2018] ). Finally, despite his youth and lack of an adult criminal history, we do not agree with defendant that his sentence was harsh and excessive. The sentence imposed was less than the maximum allowable and reflected the seriousness of defendant's conduct in shooting a gun into a crowd, which resulted in the senseless death of one individual and endangered the lives of numerous others. Considering all of the relevant circumstances, including the nature of the crimes for which defendant stands convicted and the devastating impact of his conduct on the victim and the victim's family, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Vanderhorst, 117 A.D.3d 1197, 1201–1202, 984 N.Y.S.2d 688 [2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ; People v. Timmons, 78 A.D.3d 1241, 1245, 910 N.Y.S.2d 290 [2010], lvs denied 16 N.Y.3d 833, 837, 921 N.Y.S.2d 197, 202, 946 N.E.2d 185, 190 [2011] ).
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Clark, Aarons and Pritzker, JJ., concur.