| People v Pottorff |
| 2016 NY Slip Op 08124 [145 AD3d 1095] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keith R. Pottorff, Appellant. |
Patrick A. Perfetti, Cortland, for appellant.
Mark D. Suben, District Attorney, Cortland, for respondent.
Devine, J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered April 18, 2013, upon a verdict convicting defendant of thecrimes of murder in the second degree, criminal possession of stolen property in thefourth degree, criminal possession of stolen property in the fifth degree, forgery in thesecond degree and criminal possession of a forged instrument in the second degree.
Defendant and the victim were married and, on the afternoon of July 17, 2012, hepicked the victim up from work and took her home. Defendant had recently resumedusing crack cocaine, and he acknowledged that the two had argued that afternoon abouthis drug use and his stated goal of attending a music festival later that week. He left theresidence by 7:00 p.m. and, over the course of the next few days, purchased various itemsand attended the music festival with money he obtained using the victim's debit card andchecks written against her checking account.
The victim, meanwhile, was nowhere to be found. Defendant called her employerand reported that she was sick on July 18 and 19, 2012, even though she was notscheduled to work on the latter day. The victim's coworkers became suspicious andcontacted the State Police, who located defendant on July 20, 2012 at the music festivaland recovered pieces of the victim's jewelry, her debit card and her checkbook from hiscampsite. Defendant consented to a search of the marital residence, which occurred laterthat day and resulted in the discovery of the victim's corpse, hog-tied and head enclosedby plastic bags, in a nearby shed. The autopsy conducted the next day revealed that thevictim had been asphyxiated and, given the condition of the body, the examiningpathologist opined that she had died no later than July 18, 2012. Genetic material [*2]consistent with defendant's DNA was also foundunderneath the victim's fingernails and on a rope used to bind her.
As a result of the victim's death and subsequent misuse of her assets, defendant wascharged in an indictment with murder in the second degree, criminal possession of stolenproperty in the fourth degree, criminal possession of stolen property in the fifth degree,forgery in the second degree and criminal possession of a forged instrument in thesecond degree. Defendant was found guilty as charged following a jury trial. CountyCourt sentenced defendant, a second felony offender, to an aggregate prison term of28
We affirm. As an initial matter, County Court properly permitted the People toreopen their direct examination of a witness. The People had completed that directexamination and the court took a short recess. Upon returning, the People asked the courtif they could briefly resume their direct examination in order to elicit a factual detail thatthe witness realized he had forgotten during the break. Defense counsel did not object tothis request and, in any event, it was not an abuse of discretion to allow it (see Peoplev Whipple, 97 NY2d 1, 7-8 [2001]; People v Diehl, 128 AD3d 1409, 1410 [2015]).
Defendant devotes considerable attention to the claim that he was deprived of hisright to the effective assistance of counsel but, "[s]o long as the evidence, the law, andthe circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Baldi, 54 NY2d 137,147 [1981]; accord People vKing, 27 NY3d 147, 158 [2016]). The burden rests on defendant to show thatany alleged failure by defense counsel lacked a "strategic or other legitimate explanation[]" at the time it occurred, and speculation on that score will not suffice (People v Nicholson, 26 NY3d813, 831 [2016]; see Peoplev Welch, 137 AD3d 1313, 1314 [2016], lv denied 27 NY3d 1141[2016]).
Defendant first complains that defense counsel failed to object when a portion ofvoir dire was not transcribed, but only speculates as to how this failure may have led to"any prejudicial impact on the trial" (People v Chappelle, 126 AD3d 1127, 1129 [2015], lvdenied 25 NY3d 1161 [2015]; see People v Vaughn, 135 AD3d 1158, 1159-1160 [2016],lv denied 27 NY3d 1076 [2016]). Likewise, defendant was not prejudiced bydefense counsel's failure to object to the use of purportedly confusing warnings given byCounty Court that mirrored the criminal jury instruction on the use of evidence of priorbad acts (see People v Ellis, 81 NY2d 854, 857 [1993]; CJI2d[NY] Evidence ofOther Crimes [Molineux]).[FN*] Defendant further failed to demonstratethat a legitimate explanation was absent for other alleged errors, such as defensecounsel's decision not to retain an expert witness to challenge the DNA test resultspresented by the People (seePeople v Ross, 118 AD3d 1413, 1416 [2014], lv denied 24 NY3d 964[2014]) and failure to object to the People's alleged penchant for asking leadingquestions and eliciting hearsay evidence from witnesses (see People v Madison, 106AD3d 1490, 1491-1492 [2013]; People v Leary, 145 AD2d 732, 734-735[1988], lv denied 73 NY2d 1017 [1989]). There was also no apparent reason toconduct a probing cross-examination of several prosecution witnesses, and the attempt bydefendant to second-guess defense counsel's decision not to do so [*3]is unpersuasive (see People v Flores, 84 NY2d 184,187 [1994]; People vCancer, 16 AD3d 835, 840 [2005], lv denied 5 NY3d 826 [2005]).Defendant advances other instances in which he supposedly received ineffectiveassistance of counsel but, in short, the record as a whole establishes that he receivedmeaningful representation.
Defendant lastly argues that the aggregate sentence was improper, harsh andexcessive. County Court was free to make the sentences for defendant's forgery in thesecond degree and criminal possession of a forged instrument in the second degreeconvictions run consecutively to those imposed on his other convictions as, "[e]venthough the crimes may be the result of a continuous course of events, they involvedseparate and distinct acts" (People v Jenkins, 256 AD2d 735, 737 [1998], lvdenied 93 NY2d 854 [1999]; see People v Salcedo, 92 NY2d 1019,1021-1022 [1998]; People v Morrison, 290 AD2d 808, 809-810 [2002], lvdenied 98 NY2d 653 [2002]). Moreover, after considering the nature of the presentoffenses and defendant's criminal history, we see neither an abuse of discretion in thelengthy aggregate prison sentence imposed by County Court nor any extraordinarycircumstances that would warrant its reduction.
Peters, P.J., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Contrary to defendant'scontention, County Court did not issue these warnings sua sponte. The recorddemonstrates that County Court had provided both the People and defense counsel withthe proposed instruction and that defense counsel consented to its use.