| People v Ramos |
| 2008 NY Slip Op 01661 [48 AD3d 984] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AngeloRamos, Also Known as Adam Ramos, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered February 1, 2002, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and criminal mischief in the third degree.
In November 2000, defendant and an accomplice allegedly entered the residence of LawrenceMcWalker Sr. and Lawrence McWalker Jr. in the City of Gloversville, Fulton County, wielding abaseball bat and a horseshoe and demanding to know the location of Angel Rivera, whoostensibly was the boyfriend of McWalker Sr.'s daughter. When the McWalkers denied thatRivera was there, defendant reportedly threw a horseshoe into the screen of the television andshattered a glass coffee table with the bat while his accomplice toppled their computer onto thefloor and tore the telephone from the wall. McWalker Jr. then gave a false address for Riveraand, when the perpetrators exited the premises, he went to a nearby convenience store to call thepolice. The following day, the McWalkers separately identified defendant from a photo arrayshown to them by a detective from the Gloversville Police Department. Defendant waseventually indicted for one count of burglary in the second degree and one count of criminalmischief in the second degree. Following a jury trial, he was convicted of the burglary count anda reduced count of criminal mischief in the third degree. Defendant was sentenced, as a secondviolent felony offender, to concurrent prison terms of 12 years for the burglary conviction andfour years for the criminal mischief conviction. Defendant appeals.[*2]
Defendant initially argues that County Court erred indenying his motion to dismiss the indictment based upon alleged prosecutorial misconduct beforethe grand jury. "Dismissal is a drastic, exceptional remedy and 'should thus be limited to thoseinstances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice theultimate decision reached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688 [2005], lv denied 5NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409 [1996]). "The likelihoodof prejudice turns on the particular facts of each case, including the weight and nature of theadmissible proof adduced to support the indictment and the degree of inappropriate prosecutorialinfluence or bias" (People v Huston, 88 NY2d at 409; see People v Adessa, 89NY2d 677, 684-685 [1997]). Allegations of misconduct by the prosecutor before the grand juryinclude eliciting information about defendant's criminal record, leaving before the grand jury thephoto array from which defendant was identified, and requiring defendant's alibi witnesses tosign waivers of immunity but not requiring the same of the prosecution's witnesses. Upon reviewof the grand jury minutes and noting legally sufficient evidence to support the charges, we agreewith County Court that, while hardly exemplary conduct by the prosecutor, the errorsnevertheless do not rise to the level of establishing that the proceeding was legally impaired orresulted in prejudice to defendant requiring dismissal (see People v Levandowski, 8 AD3d 898, 900 [2004]).
Next, we consider defendant's contention that his speedy trial rights were violated.Determining whether the People have satisfied their statutory speedy trial obligation to be readyfor trial within six months of the commencement of a felony action (see CPL 30.30 [1][a]) is "generally determined by computing the time elapsed between the filing of the firstaccusatory instrument and the People's declaration of readiness, subtracting any periods of delaythat are excludable under the terms of the statute and then adding to the result any postreadinessperiods of delay that are actually attributable to the People and are ineligible for an exclusion"(People v Cortes, 80 NY2d 201, 208 [1992]). This criminal action was commenced withthe filing of a felony complaint on November 22, 2000, the People's statement of readiness wasfiled on March 13, 2001, with 41 of those days excludable (see CPL 30.30 [4] [b], [f]),leaving 70 days attributable to the People. The focus thus shifts to whether the People arechargeable with any postreadiness delays between the filing of the statement of readiness and thetrial which commenced on December 3, 2001. The relevant postreadiness delay involvedprosecutorial laxity in responding to a motion which did not constitute a direct impediment tocommencing the trial and, accordingly, is not chargeable to the People (see People vEngland, 84 NY2d 1, 5 [1994]; People v Anderson, 66 NY2d 529, 534 [1985];Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30, at 211).The People did not run afoul of the statutory speedy trial and, upon considering the factors setforth in People v Taranovich (37 NY2d 442, 445 [1975]), we find defendant'sconstitutional speedy trial argument to be unavailing (see People v Golgoski, 43 AD3d 551, 552-553 [2007]; People v Simpson, 34 AD3d 934,935 [2006], lv denied 8 NY3d 849 [2007]).
Defendant asserts that the identification testimony of the victims should have beensuppressed upon the ground that the photo array[FN*] was improper. We have reviewed the five [*3]photographs, whichdepict individuals with similar characteristics, and are unpersuaded that the array was undulysuggestive (see People v McDonald, 306 AD2d 696, 696-697 [2003]). To the extent thatthe detective presenting the array may have suggested to the witnesses that the suspect wasincluded in the array, such conduct does not fatally infect the procedure (see People v Bourne, 46 AD3d1101, 1102-1103 [2007]; People v Brennan, 261 AD2d 914, 915 [1999], lvdenied 94 NY2d 820 [1999]). The method used to present the array, in which one witnessremained in a separate room of the McWalkers' residence while the other witness viewed thearray, did not taint the identification of the second witness under the circumstances (see People v Rodriguez, 17 AD3d1127, 1129 [2005], lv denied 5 NY3d 768 [2005]; People v Cummings, 109AD2d 748, 748-749 [1985]).
We are unpersuaded by defendant's argument that he did not receive the effective assistanceof counsel. "So long as the evidence, the law, and the circumstances of a particular case, viewedin totality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People v Baldi, 54NY2d 137, 147 [1981] [citations omitted]; accord People v Henry, 95 NY2d 563, 565[2000]; People v Benevento, 91 NY2d 708, 712 [1998]). Here, review of the recordreveals that defense counsel forcefully made appropriate motions, sought relevant disclosure,effectively cross-examined the prosecution's witnesses, produced witnesses favorable to thedefense, made many appropriate objections and otherwise zealously represented defendant (see People v Williams, 8 NY3d854, 855-856 [2007]). The errors alleged by defendant are made up primarily ofsecond-guessing with the advantage of hindsight (see People v Turner, 5 NY3d 476, 480 [2005]; People vBenevento, 91 NY2d at 712) and do not rise to the level of ineffective assistance. Withregard to defendant's argument of ineffectiveness under the federal constitution, "[b]ecause ourstate standard . . . offers greater protection than the federal test" and the higher statestandard was satisfied, this argument necessarily fails (People v Caban, 5 NY3d 143, 156 [2005]).
Defendant asserts that County Court erred in imposing a determinate prison sentence of fouryears for his conviction of criminal mischief in the third degree. Since criminal mischief in thethird degree is not a violent felony (see Penal Law § 70.02 [1] [d]; § 145.05),the People now concede that defendant should have been sentenced to an indeterminate term as asecond felony offender rather than a determinate term as a second violent felony offender forsuch crime (see People v Harris, 304 AD2d 355, 356 [2003], lv denied 100 NY2d582 [2003]; People v Peraza, 288 AD2d 689, 692 [2001], lv denied 97 NY2d 707[2002]; see also People v Coleman,23 AD3d 1033, 1034 [2005]).
The remaining arguments have been considered and found unavailing.
Mercure, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed upon defendant's conviction of criminal mischief inthe third degree; matter remitted to the [*4]County Court ofFulton County for resentencing on said count; and, as so modified, affirmed.
Footnote *: Defendant has filed anadditional submission alleging that the photo array exhibit was tampered with by the prosecutorand the prosecutor has submitted a response thereto. Notwithstanding that said submissions werereceived after the calendar date of this appeal, they have been accepted and considered. Thisadditional allegation is without merit.