| People v Perez |
| 2009 NY Slip Op 08255 [67 AD3d 1324] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose R. Perez,Appellant. |
—[*1] Jose R. Perez, defendant-appellant pro se. Richard E. Swinehart, District Attorney, Waterloo (John A. Cirando of counsel), forrespondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered April21, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the third degree, attempted assault in the second degree, endangering the welfare of achild and harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, criminal possession of a weapon in the third degree (Penal Law § 265.02 [1])and attempted assault in the second degree (§§ 110.00, 120.05 [2]). We reject thecontention of defendant that he was denied his statutory right to testify before the grand jury andthus that County Court erred in denying his motion to dismiss the indictment on that ground (see generally People v Smith, 18AD3d 888 [2005], lv denied 5 NY3d 794 [2005]). There is no evidence in the recordthat defendant or his attorney gave the requisite written notice to the District Attorney thatdefendant intended to testify before the grand jury (see CPL 190.50 [5] [a]). To theextent that defendant contends that he was denied effective assistance of counsel on the groundthat his attorney failed to effectuate his intent to testify, we conclude that there is no indication inthe record that defendant conveyed or attempted to convey his wish to testify to his attorney(see People v Williams, 301 AD2d 669 [2003], lv denied 100 NY2d 544 [2003]).In any event, even if defendant had informed his attorney of his wish to testify, "an attorney'sfailure to secure a defendant's right to testify before the grand jury, without more, does notestablish ineffective assistance of counsel or require reversal" (People v Rojas, 29 AD3d 405,405-406 [2006], lv denied 7 NY3d 794 [2006], citing People v Wiggins, 89NY2d 872 [1996]). Viewing the evidence in light of the elements of the crime of criminalpossession of a weapon in the third degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict convicting defendant of that crime isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]).
We reject defendant's further contention that the court erred in admitting testimonyconcerning prior threats made by defendant to the victim. The evidence was relevant to establishdefendant's motive (see People vMosley, 55 AD3d 1371, 1372 [2008], lv denied 11 NY3d 856 [2008]), as well[*2]as to provide background information concerning the priorrelationship between defendant and the victim (see People v Meseck, 52 AD3d 948, 950 [2008]). "Unlikeevidence of general criminal propensity, evidence that a particular victim was the focus of adefendant's continuing aggression may be highly relevant" (People v Ebanks, 60 AD3d 462, 462 [2009]; see People v Hanson, 30 AD3d537 [2006], lv denied 7 NY3d 848 [2006]).
Defendant also contends that the cumulative effect of prosecutorial misconduct onsummation deprived him of a fair trial. Inasmuch as defendant failed to object to any of theprosecutor's allegedly inappropriate remarks, his contention is unpreserved for our review (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]), and we decline to exercise ourpower to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Defendant's constitutional challenge to the persistent felony offender statute is not properlybefore us, inasmuch as there is no indication in the record that the Attorney General was giventhe requisite notice of that challenge (see Executive Law § 71 [3]; People v Schaurer, 32 AD3d 1241[2006]). In any event, that contention is likewise unpreserved for our review (see People v Phillips, 56 AD3d1168, 1169 [2008], lv denied 11 NY3d 928 [2009]), and it is without merit (see People v Quinones, 12 NY3d116 [2009]; see generally People vRivera, 5 NY3d 61, 66-68 [2005], cert denied 546 US 984 [2005]). Weconclude that the court properly sentenced defendant as a persistent felony offender based uponhis criminal history (see People vO'Connor, 6 AD3d 738, 740-741 [2004], lv denied 3 NY3d 645 [2004]), andthat the sentence is not unduly harsh or severe.
The remaining contentions of defendant are raised in his pro se supplemental brief.Defendant failed to preserve for our review his contentions with respect to the composition ofthe jury pool (see CPL 270.10 [2]), and the court's alleged failure to administer the oathof truthfulness to prospective jurors (seePeople v Hampton, 64 AD3d 872, 877 [2009], lv denied 13 NY3d 796 [2009];People v Dickens, 48 AD3d1034, 1034 [2008], lv denied 10 NY3d 958 [2008]), and we decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant also failed to preserve for our review his challenge to thelegal sufficiency of the evidence with respect to the crimes of criminal possession of a weapon inthe third degree and attempted assault in the second degree (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). We have reviewed defendant'sremaining contentions and conclude that they are without merit. Present—Martoche, J.P.,Smith, Peradotto, Carni and Green, JJ.