| People v Mantor |
| 2012 NY Slip Op 04911 [96 AD3d 1645] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John M.Mantor, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July22, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree,burglary in the second degree and arson in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofburglary in the first degree (Penal Law § 140.30 [3]), burglary in the second degree(§ 140.25 [2]) and arson in the third degree (§ 150.10 [1]). The evidence at trialestablished that defendant broke into his ex-girlfriend's residence and set fire to the premises,causing significant property damage. Defendant failed to preserve for our review his contentionthat County Court erred in admitting in evidence photographs depicting various relatives of hisex-girlfriend in her residence prior to the fire (see CPL 470.05 [2]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Given the innocuous nature of the photographs and the minimalprejudice suffered by defendant as a result of their admission in evidence, we conclude thatdefense counsel's failure to object to the photographs on relevancy grounds did not deprivedefendant of meaningful representation (see generally People v Benevento, 91 NY2d708, 712-713 [1998]). We similarly conclude that defendant was not deprived of meaningfulrepresentation as a result of his attorney's failure to retain an expert to testify in support of hisintoxication defense. " 'Defendant has not demonstrated that such testimony was available, that itwould have assisted the jury in its determination or that he was prejudiced by its absence' "(People v Jurgensen, 288 AD2d 937, 938 [2001], lv denied 97 NY2d 684 [2001];see People v Hunter, 70 AD3d1388, 1389 [2010], lv denied 15 NY3d 751 [2010]).
Defendant further contends that statements he made to police officers investigating the fireshould have been suppressed because he had invoked his right to counsel earlier that morning onan unrelated charge. We reject that contention. "Under New York's indelible right to counsel rule,a defendant in custody in connection with a criminal matter for which he is represented bycounsel may not be interrogated in the absence of his attorney with respect to that matter or anunrelated matter unless he waives the right to counsel in the presence of his attorney" (People v Lopez, 16 NY3d 375,377 [2011]; see People v Rogers, 48 NY2d 167, 169-174 [1979]). Here, defendant was[*2]not in custody on the unrelated charge for which he hadpreviously invoked his right to counsel, and thus he did not have a derivative right to counselwith respect to the arson charge (see People v Steward, 88 NY2d 496, 500-502 [1996],rearg denied 88 NY2d 1018 [1996]; People v Osborne, 88 AD3d 1284, 1286 [2011]; People v Scaccia, 6 AD3d 1105,1105-1106 [2004], lv denied 3 NY3d 681 [2004]). Present—Centra, J.P.,Peradotto, Carni, Lindley and Sconiers, JJ.