| People v Salsbery |
| 2010 NY Slip Op 08314 [78 AD3d 1624] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shaun M.Salsbery, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered July27, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree andpetit larceny.
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 burglaryin the third degree (Penal Law § 140.20) and petit larceny (§ 155.25). We reject thecontention of defendant that he received ineffective assistance of counsel and instead conclude that the"cumulative effect of defense counsel's alleged deficiencies, viewed in totality and as of the time of therepresentation, did not deprive defendant of effective assistance of counsel" (People v Marcial, 41 AD3d 1308,1309 [2007], lv denied 9 NY3d 878 [2007]; see People v Brown, 266 AD2d 838,839 [1999], lv denied 94 NY2d 860 [1999]; see generally People v Baldi, 54 NY2d137, 147 [1981]). In support of his contention, defendant asserts that defense counsel should not havecalled as a witness one of defendant's friends who acted in concert with defendant in committing thecrimes. As the People correctly note, however, the theory of the defense was that defendant believedthat his friend had permission to enter the garage from which they took the all-terrain vehicle in questionand that defendant intended to purchase it for his children. Thus, defendant has failed to show thatdefense counsel had no strategic explanation for calling defendant's friend as a witness (see People v Covington, 44 AD3d510, 511 [2007], lv denied 9 NY3d 1032 [2008]; see generally People vBenevento, 91 NY2d 708, 712 [1998]; Baldi, 54 NY2d at 147). Defendant has likewisefailed to demonstrate that defense counsel had no strategy in eliciting testimony that defendant was inpossession of drugs when the police questioned him, and in questioning defendant with respect to hiscriminal history. The possession of drugs provided an explanation for defendant's having fled the sceneof the accident as well as for defendant's cursory responses to questioning by the police (seePeople v Rodriguez, 196 AD2d 514 [1993], lv denied 82 NY2d 807 [1993]; seegenerally Baldi, 54 NY2d at 147), and pursuant to the court's Sandoval ruling theprosecutor was permitted to question defendant with respect to his criminal history in any event.Although we are troubled by the fact that defense counsel did not request a Huntley hearing inconnection with defendant's statements to the police, we note that defense counsel otherwise provideda cogent and rational defense that addressed [*2]those statements.Thus, we conclude that the failure to request a Huntley hearing does not rise to the level ofineffective assistance of counsel (see People vWebster, 56 AD3d 1242, 1242-1243 [2008], lv denied 11 NY3d 931;Marcial, 41 AD3d 1308 [2007]; People v Jurjens, 291 AD2d 839 [2002], lv denied98 NY2d 652 [2002]). In addition, we conclude that defendant has failed to show that defensecounsel was ineffective in failing to object to questioning by the prosecutor concerning defendant'spretrial silence (see Brown, 266 AD2d at 839; People v Davis, 111 AD2d 252[1985]). "Although a prosecutor generally may not use the pretrial silence of a defendant to impeach hisor her trial testimony [and to comment on that silence on summation] . . . , that generalrule does not apply where, as here, 'a defendant speaks to the police and omits exculpatory informationwhich he [or she] presents for the first time at trial' " (People v Harris, 57 AD3d 1523, 1524 [2008], lv denied 12NY3d 817 [2009]; see generally People v Savage, 50 NY2d 673, 680-682 [1980], certdenied 449 US 1016 [1980]). We therefore further conclude that defendant was not denied a fairtrial based on alleged prosecutorial misconduct in connection with his pretrial silence.
Defendant failed to object to County Court's ultimate Sandoval ruling and thus failed topreserve for our review his contention that the court erred in allowing or, alternatively, in failing to limitcross-examination concerning his prior convictions (see People v Anthony, 74 AD3d 1795 [2010], lv denied 15NY3d 849 [2010]; People v Miller, 59AD3d 1124, 1125 [2009], lv denied 12 NY3d 819 [2009]). In any event, we concludethat the court did not abuse its discretion in precluding the prosecutor from cross-examining defendantwith respect to one remote conviction in 1997 but in otherwise allowing the prosecutor tocross-examine defendant with respect to his remaining convictions. Defendant's drug-relatedconvictions and convictions for criminal mischief and resisting arrest showed the willingness ofdefendant to place his own interests above those of society (see People v Davenport, 38 AD3d 1064, 1065 [2007]; People v Carter, 34 AD3d 1342[2006], lv denied 8 NY3d 844 [2007]; People v Mangan, 258 AD2d 819, 820-821[1999], lv denied 93 NY2d 927 [1999]). Additionally, defendant's convictions for theft ofservices, attempted petit larceny, and criminal contempt involved acts of dishonesty and thus wereprobative with respect to the issue of defendant's credibility (see People v Robles, 38 AD3d 1294, 1295 [2007], lv denied 8NY3d 990 [2007]; People v Tirado, 19AD3d 712, 713 [2005], lv denied 5 NY3d 810 [2005]). Finally, the sentence is notunduly harsh or severe. Present—Centra, J.P., Carni, Sconiers and Pine, JJ.