| People v Young |
| 2014 NY Slip Op 01480 [115 AD3d 1013] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony Young, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli and Vincent Starkof counsel), for respondent.
McCarthy, J. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered September 14, 2011, upon a verdict convicting defendant of thecrimes of reckless endangerment in the first degree, criminal trespass in the seconddegree, criminal mischief in the fourth degree, unlawfully fleeing a police officer in amotor vehicle in the third degree and driving while intoxicated, and (2) by permission,from an order of said court, entered March 29, 2013, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant broke into a house. When defendant was confronted by the owner, whoknew him, defendant got into a vehicle, backed out of the driveway, evaded a policeofficer, and drove at a high rate of speed without his lights on, eventually crashing intoanother vehicle. Defendant was charged in an indictment with burglary in the seconddegree, criminal mischief in the fourth degree, petit larceny, unlawfully fleeing a policeofficer in a motor vehicle in the third degree, reckless endangerment in the first degree,criminal mischief in the second degree and driving while intoxicated. Prior to trial,County Court dismissed the charge of criminal mischief in the second degree. At trial,defendant was acquitted of petit larceny, found guilty of criminal [*2]trespass in the second degree as a lesser included offenseon the count charging burglary, and found guilty of the remaining charges. County Courtsentenced him to one year terms for each of the misdemeanor convictions, which weremerged by operation of law (see Penal Law § 70.35) into the sentence of 3to 6 years in prison for reckless endangerment in the first degree. The court also imposedrestitution and required defendant to install an interlock device on his vehicle after hisrelease from prison.
Defendant later moved, pursuant to CPL 440.10, to vacate his judgment ofconviction. County Court denied the motion without a hearing. Defendant appeals fromthe judgment of conviction and, by permission, from the order denying his motion.
Defendant was not denied a fair trial by County Court's pretrial Sandovalruling. In such a ruling, the trial court has discretion and may choose from severaloptions when weighing the prejudice to a defendant's right to a fair trial against thePeople's right to impeach a testifying defendant's credibility based on his or her priorconvictions (see People v Hayes, 97 NY2d 203, 207 [2002]). Those optionsinclude exclusion of the evidence, limiting the inquiry to whether there has been a priorconviction, limiting inquiry to the existence and nature of the prior conviction, orallowing inquiry into the underlying facts and circumstances of a prior conviction (see People v Smith, 18 NY3d588, 593 [2012]; People v Hayes, 97 NY2d at 208). Here, the People soughtto use 14 prior convictions to impeach defendant's credibility if he testified at trial. Thecourt entirely precluded reference to five of those convictions as too old. With respect todefendant's two felony convictions, for burglary in the second degree and attemptedcriminal possession of a controlled substance in the fifth degree, the court limited thePeople's inquiry to whether defendant had been convicted of a felony on a certain date.With respect to the remaining misdemeanors, the court also limited inquiry to whetherdefendant had been convicted of a misdemeanor on a certain date, without permitting thefacts or the name of the crime. The court explained that the permitted crimes "go directlyto the defendant's credibility or the fact that he places himself above the interests ofsociety," but that the limitations placed on their use diminished the prejudice todefendant. As this compromise appropriately balanced the interests at stake, we cannotsay that the court abused its discretion in this regard (see People v Smith, 18NY3d at 594; People vWilliams, 12 NY3d 726, 727 [2009]; People v Lemke, 58 AD3d 1078,1079 [2009]).
Defendant did not preserve for review his argument that he was denied due processor a fair trial by the People's elicitation of statements he made referencing his priorincarceration, or by a statement that his counsel elicited from a witness that defendanthad been accused of stealing from the witness's relative (see People v Abrams, 73AD3d 1225, 1227 [2010], affd 17 NY3d 760 [2011]; People vTinning, 142 AD2d 402, 406 [1988], lv denied 73 NY2d 1022 [1989]). Wedecline to exercise our interest of justice jurisdiction in connection with theseunpreserved arguments.
Defendant created a dangerous situation by driving, while intoxicated, at a high rateof speed, with no lights on, in an area that included residences, businesses and a school.While fleeing from police, he struck a vehicle, continued driving, then caused a majorcollision that put him in a coma and totaled the other vehicle. Considering thesecircumstances that put the safety of the community at risk, along with his criminalhistory, defendant's sentence was not harsh or excessive (see People v Holmes, 67 AD3d1069, 1071 [2009]; People v Padula, 197 AD2d 747, 749 [1993], lvdenied 82 NY2d 928 [1994]).[*3]
County Court properly denied defendant's CPL440.10 motion to vacate the judgment of conviction. Defendant asserts that he wasimproperly arraigned, without counsel, while he was in a coma in the hospital and that norecord was made of that arraignment. The motion papers do not contain any support forthis assertion, other than defendant's own affidavit. Even if this were true, however, suchalleged error was cured when defendant was arraigned two months later, with counselpresent, upon return of the indictment (see People ex rel. Van Steenburg v Wasser, 69 AD3d 1135,1136 [2010], lv dismissed and denied 14 NY3d 883 [2010]; People vMeachem, 50 AD2d 953, 953 [1975]; People v Winch, 50 AD2d 948, 948[1975]).
Most of defendant's arguments alleging ineffective assistance of counsel are based oninformation that was in the record. As these arguments could have been raised on directappeal, they are not the proper basis for a postconviction motion (see CPL440.10 [2] [c]; People v Lindsey, 302 AD2d 128, 130 [2003], lv denied100 NY2d 583 [2003]). To the extent that his argument is based on information that wasoutside the original record, it does not support a finding of ineffectiveassistance.[FN1]Defendant asserts that counsel was inexperienced in criminal law, unprepared, did notexplore defenses and did not explain strategy or options to defendant. Despite thoseallegations, counsel obtained dismissal of one count prior to trial, engaged in pleabargain negotiations, and achieved an outright acquittal on one count plus an acquittal onthe most serious count, with the jury convicting defendant of a misdemeanor lesserincluded charge on that count. While defendant asserts that had he been properly advisedhe may not have proceeded to trial, the People offered two plea bargains prior to trial anddefendant rejected each one. His eventual sentence was less than the proposed sentencein either of those two offers. Viewing defendant's assertions in his motion along with therecord as a whole, defendant failed to raise a triable issue of fact on his claim ofineffective assistance.
Although defendant sustained a head injury in the collision and was apparently in acoma afterward, the motion papers do not indicate that defendant lacked the capacity tounderstand the charges or proceedings or assist in his defense for the trial six monthslater.[FN2]Thus, he has not provided any support for his argument that defense counsel should haverequested, or County Court should have sua sponte ordered, a hearing pursuant to CPLarticle 730 (see People vDowling, 92 AD3d 1034, 1034-1035 [2012], lv denied 18 NY3d 993[2012]; People v Alexis, 65AD3d 1160, 1161 [2009]; see also People v Shiels, 93 AD3d 992, 993 [2012]).Accordingly, the court properly denied defendant's CPL 440.10 motion, without ahearing.
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1: Defendant's complaintsabout his assigned counsel are irrelevant, considering that defendant later retainedcounsel approximately five months prior to trial, and his retained counsel could haveremedied any errors allegedly committed by prior counsel.
Footnote 2: The record also doesnot support such a proposition. If it did, however, his argument would have to have beenraised on direct appeal, rather than in a postconviction motion (see CPL 440.10[2] [c]).