| People v Jacobson |
| 2009 NY Slip Op 02048 [60 AD3d 1326] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ryan W.Jacobson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedSeptember 21, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree, criminal possession of a weapon in thethird degree and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the forfeiture of $1,685 and by vacating the sentence and as modified the judgmentis affirmed, and the matter is remitted to Ontario County Court for resentencing.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1])and criminal possession of a weapon in the third degree (§ 265.02 [1]), defendant contendsthat County Court erred in refusing to suppress his statements to the police. We reject thatcontention. The evidence at the suppression hearing establishes that, after receiving hisMiranda warnings, defendant indicated that he understood his rights and agreed to speakwith the officer who administered the warnings (see People v John, 288 AD2d 848[2001], lv denied 97 NY2d 705 [2002]; see also People v Smith, 217 AD2d 221,231-232 [1995], lv denied 87 NY2d 977 [1996]). Consequently, the court properlyrefused to suppress his statements to that officer and to the officer who questioned him a fewminutes later. The court also properly refused to suppress the statements made by defendant tothe officer who questioned him 45 minutes later without readministering Mirandawarnings. Contrary to defendant's contention, "[i]t is well settled that where a person in policecustody has been issued Miranda warnings and voluntarily and intelligently waives thoserights, it is not necessary to repeat the warnings prior to subsequent questioning within areasonable time thereafter, so long as the custody has remained continuous," and that is the casehere (People v Glinsman, 107 AD2d 710, 710 [1985], lv denied 64 NY2d 889[1985], cert denied 472 US 1021 [1985]). In addition, the court properly determined thatdefendant's remaining statements were "spontaneous and were not the product of expressinterrogation or its functional equivalent" (People v Wearen, 19 AD3d 1133, 1134 [2005], lv denied 5NY3d 834 [2005]). The police are not required "to take affirmative steps, by gag or otherwise, toprevent a talkative person in custody from making an incriminating statement" (People vRivers, 56 NY2d 476, 479 [1982], rearg denied 57 NY2d 775 [1982]).[*2]
In his motion for a trial order of dismissal, defendantfailed to identify any of the specific grounds now raised on appeal and thus failed to preserve forour review his challenge to the legal sufficiency of the evidence (see People v Gray, 86NY2d 10, 19 [1995]). In any event, that challenge lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that the court erred in refusing to grant a mistrial on the groundthat the prosecutor failed to disclose in a timely manner an alleged electronic recording presentedat trial, i.e., the telephone numbers recorded on a cellular telephone seized from defendant. Evenassuming, arguendo, that the People were required to disclose that recording pursuant to CPL240.20, we note that "[t]he sanction to be imposed for the failure of the People to comply fullywith discovery demands until the time of trial is within the sound discretion of the trial court"(People v Poladian, 167 AD2d 912, 912-913 [1990], lv denied 77 NY2d 881[1991]; see People v Collins, 288 AD2d 860 [2001], lv denied 97 NY2d 752[2002]). We note in addition that "[t]he People's delay in complying with the provisions of CPL240.20 constitutes reversible error . . . only when the delay substantially prejudicesdefendant" (People v Benitez, 221 AD2d 965, 966 [1995], lv denied 87 NY2d970 [1996]), and here defendant failed to establish that he suffered any actual prejudice from thelate disclosure.
Defendant also contends that the court erred in denying his motions seeking a mistrial basedon prosecutorial misconduct. Defendant made several such motions, contending that he had beendenied a fair trial because the prosecutor failed to disclose the electronic recording prior to trialand repeatedly informed the court and defense counsel that no electronic recordings would beused at trial. We reject that contention. Reversal based on prosecutorial misconduct is "mandatedonly when the conduct [complained of] has caused such substantial prejudice to the defendantthat he has been denied due process of law" (People v Mott, 94 AD2d 415, 419 [1983];see People v Ferguson, 17 AD3d1074 [2005], lv denied 5 NY3d 788 [2005]) and, as noted, defendant failed toestablish that the prosecutor's alleged misconduct caused such prejudice.
Defendant further contends that he was denied effective assistance of counsel because, interalia, defense counsel failed to secure a transcript of the voir dire. The record establishes,however, that "defendant explicitly waived the transcription of voir dire" (People vCollins, 288 AD2d 860, 861 [2001], lv denied 97 NY2d 752 [2002]; seegenerally People v Harrison, 85 NY2d 794, 796 [1995]), and thus that contention is notproperly before us. With respect to the remaining instances of alleged ineffective assistance ofcounsel, we conclude that defendant has failed to " 'demonstrate the absence of strategic or otherlegitimate explanations' for [defense] counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998]). Indeed, viewing "the evidence, the law, and thecircumstances of [this] case, . . . in totality and as of the time of the representation,"we conclude that defendant received meaningful representation (People v Baldi, 54NY2d 137, 147 [1981]).
As the People correctly concede, they failed to comply with the procedural requirements ofPenal Law § 480.10. Although this issue is not preserved for our review (see CPL470.05 [2]), we conclude that the failure to comply with Penal Law § 480.10 is a"fundamental, nonwaivable defect in the mode of procedure" for which preservation is notrequired (People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197[1977]). We therefore modify the judgment by vacating the forfeiture of the money seized fromdefendant at the time of his arrest.
The sentence is not unduly harsh or severe, nor does the record support defendant'scontention that the sentence was the product of vindictiveness (see People v White, 12AD3d [*3]1200 [2004], lv denied 4 NY3d 768 [2005])."The mere fact that a sentence imposed after trial is greater than that offered in connection withplea negotiations is not proof that defendant was punished for asserting his right to trial"(People v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992];see People v Pena, 50 NY2d 400, 411-412 [1980], rearg denied 51 NY2d 770[1980], cert denied 449 US 1087 [1981]). We note, however, that "there is a discrepancybetween the sentencing minutes and the certificate of conviction. The sentencing minutesprovide that the sentence imposed for [criminal possession of a weapon] in the third degree shallrun consecutively to the sentence imposed for [criminal possession of a controlled substance inthe third] degree but the certificate[s] of conviction provide[ ] that the sentence[s] shall runconcurrently" (People v Rivera, 30AD3d 1019, 1020 [2006], lv denied 7 NY3d 870, reconsideration denied 8NY3d 884 [2006]; see People v Shand, 280 AD2d 943, 944 [2001], lv denied 96NY2d 834 [2001]). We therefore further modify the judgment by vacating the sentence, and weremit the matter to County Court for resentencing.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Centra, Fahey, Green and Pine, JJ.