| People v Kelly |
| 2009 NY Slip Op 06085 [65 AD3d 714] |
| August 6, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey A.Kelly, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Broome County (Mathews,J.), rendered May 4, 2007, upon a verdict convicting defendant of the crimes of murder in thefirst degree, robbery in the first degree and criminal possession of a weapon in the third degree.
For his role in the robbery and murder of a crack dealer that he allegedly committed withtwo codefendants,[FN*]defendant was charged with murder in the first degree, two counts of murder in the seconddegree, robbery in the first degree, conspiracy in the fourth degree, tampering with physicalevidence and criminal possession of a weapon in the third degree. Following a jury trial,defendant was found guilty of all counts, except conspiracy in the fourth degree. On defendant'smotion pursuant to CPL 330.30 and with the People's consent, County Court dismissed theevidence tampering charge and, sua sponte, dismissed the two counts of [*2]murder in the second degree as lesser included offenses of murderin the first degree. Defendant was thereafter sentenced to an aggregate prison term of 25 years tolife, with five years of postrelease supervision. Defendant appeals.
Contrary to defendant's contention, County Court did not err by refusing to dismiss twojurors who had cursory, albeit impermissible, contact with a witness for the People. The recordreflects that, after a sufficiently probing inquiry into the matter, the court properly determinedthat the jurors were not grossly unqualified to continue serving and that defendant would not beprejudiced by continuing with the trial (see People v Buford, 69 NY2d 290, 299-300[1987]; People v Wallace, 293 AD2d 872, 873-874 [2002]). Defendant's claim that thecourt's inquiry was insufficient is unpreserved inasmuch as defendant failed to raise suchobjection at the time of the inquiry (seePeople v Hicks, 6 NY3d 737, 739 [2005]).
Although defendant asserts a litany of additional errors that he claims deprived him of a fairtrial, these contentions were not preserved for review (see CPL 470.05 [2]). Moreover,contrary to defendant's contention, trial counsel's failure to make the appropriate objections didnot render counsel ineffective, especially considering that defendant's arguments lack merit inany event. The record further reflects that the two attorneys representing defendant at trialengaged in extensive discovery, successfully sought and obtained the suppression or limitationof testimonial and physical evidence, effectively cross-examined witnesses and successfullymoved pursuant to CPL article 330 to set aside the verdict on one count of the indictment.Considering the totality of the circumstances, defendant was afforded meaningful representation(see People v Baldi, 54 NY2d 137, 147 [1981]; People v Fuller, 50 AD3d 1171, 1176-1177 [2008], lvdenied 11 NY3d 788 [2008]).
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: For his participation in theincident, codefendant Luther Thomas pleaded guilty to robbery in the first degree and, inexchange for his testimony against defendant, he received an 18-year prison sentence. Uponappeal, this Court affirmed the judgment of conviction (People v Thomas, 53 AD3d 864 [2008], lv denied 11NY3d 858 [2008]).