| People v Wiltshire |
| 2012 NY Slip Op 05031 [96 AD3d 1227] |
| June 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CharlesWiltshire, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered November 12, 2009, upon a verdict convicting defendant of the crimes of burglary inthe second degree, robbery in the second degree and criminal possession of stolen property in thefifth degree.
Defendant was discovered by the victim in the victim's garage holding a pair of binocularsbelonging to the victim. A fight ensued between the two men, during which defendant bit thevictim's finger. After the police arrived and secured the area, the victim's wallet was discoveredin the right front pocket of defendant's jacket, which had come off during the altercation betweendefendant and the victim. According to the arresting officer, defendant made an oral admission atthe scene and in the police vehicle in which he was transported to the police station. Afterspeaking with detectives, he also signed a written statement admitting to, among other things,participating in the altercation. He was subsequently indicted for the crimes of burglary in thesecond degree, robbery in the second degree, criminal possession of stolen property in the fifthdegree and criminal mischief in the fourth degree.
Following a Huntley hearing, County Court denied defendant's motion to suppresshis oral and written statements. A Sandoval hearing was also held, resulting in acompromise ruling permitting the People to ask defendant, on cross-examination, if he had beenconvicted of a [*2]felony in July 1994 and "well in excess of adozen misdemeanor offenses" between December 1988 and May 2009. The court's rulingprecluded any further questioning regarding defendant's prior convictions so long as he answeredthose questions affirmatively. Following a jury trial, defendant was acquitted of the charge ofcriminal mischief in the fourth degree and was convicted of the remaining charges. Prior tosentencing, the People filed a predicate felony statement along with a presentence report andrequested that defendant be sentenced as a second felony offender. Defendant received a copy ofthe predicate felony statement and supporting documentation and admitted to the prior offense atthe sentencing hearing. County Court sentenced defendant to an aggregate sentence of 14 years inprison followed by five years of postrelease supervision. Defendant now appeals and we affirm.
Defendant argues that the cumulative effect of a variety of errors on the part of his attorneydeprived him of the effective assistance of counsel. A criminal defendant is not entitled to aperfect or error free trial (see People vElwood, 80 AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]; People v Damphier, 13 AD3d 663,664 [2004]). Moreover, "the claim of [ineffective assistance of counsel] is ultimately concernedwith the fairness of the process as a whole rather than its particular impact on the outcome of thecase" (People v Benevento, 91 NY2d 708, 714 [1998]; see People v Elwood, 80AD3d at 990). Thus, a defendant receives the effective assistance of counsel " '[s]o long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation' " (People vBenevento, 91 NY2d at 712, quoting People v Baldi, 54 NY2d 137, 147 [1981];see People v Satterfield, 66 NY2d 796, 798 [1985]; People v Avery, 80 AD3d 982, 987 [2011], lv denied 17NY3d 791 [2011]).
Here, defendant's ineffective assistance claim is based on his assertions that the form ofdefense counsel's questions on his cross-examination of various witnesses was improper, andcounsel failed to raise proper objections during the suppression hearing and at trial, opened thedoor to allow the People to inquire about his prior misdemeanors contrary to County Court'sSandoval ruling and failed to fully investigate the credibility of the victim. In our view,the record reflects that defense counsel engaged in effective cross-examination of the People'switnesses, including impeaching the victim's credibility on certain matters and eliciting testimonyfrom other witnesses that was favorable to defendant. Defendant has failed to show the absenceof strategic or other legitimate explanations for the form of the questions used by defense counselon cross-examination (see People vCaban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226,1228-1229 [2012]), and counsel's choice of the manner of questioning the People's witnessesdoes not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713;People v Kuforiji, 88 AD3d1165, 1167 [2011]).
We are also unpersuaded that defense counsel's failure to make certain specified objectionsthroughout the pretrial proceedings and at trial deprived defendant of meaningful representation(see People v Singh, 16 AD3d974, 977-978 [2005], lv denied 5 NY3d 769 [2005]; People v Damphier, 13AD3d at 664; People v Sowizdral, 275 AD2d 473, 475-476 [2000], lv denied 95NY2d 969 [2000]). Furthermore, while the People concede that their reference to the victim'sreligious affiliation during summation was improper (see People v Woodrow, 91 AD3d 1188, 1190 [2012], lvdenied 18 NY3d 999 [2012]; People v Dat Pham, 283 AD2d 952, 952 [2001], lvdenied 96 NY2d 900 [2001]; People v Mercado, 188 AD2d 941, 944 [1992]),defense counsel's failure to object to such reference did not, in and of itself, render hisrepresentation ineffective (see People vTaylor, 1 NY3d 174, 176 [2003]; People v Tonge, 93 NY2d 838, 840 [1999]; People v Moyer, 75 AD3d 1004,1007 [2010]).[*3]
Defendant's assertion that defense counsel erred in failingto investigate the victim's credibility before trial is also unavailing. Inasmuch as defendantconcedes that the matters which he now claims called the victim's credibility into questionoccurred long after the trial, defense counsel would have had no way of knowing about them (see People v O'Halloran, 48 AD3d978, 979 [2008], lv denied 10 NY3d 868 [2008]). In any event, defendant'scomplaint in this regard involves matters outside the record and is not properly reviewable ondirect appeal (see People v Muniz,93 AD3d 871, 875 [2012]; People vSwartz, 23 AD3d 917, 918 [2005], lv denied 6 NY3d 818 [2006]).
While we agree with defendant's assertion that counsel's imprudent wording of a question todefendant regarding his prior misdemeanor convictions effectively opened the door for thePeople to inquire as to the precise number of such convictions[FN*]—31, as opposed to "well in excess of adozen"—the question was likely a reasonable strategy, although ultimately unsuccessful, tobring out defendant's criminal history on direct examination in order to mitigate the moredamaging effect such revelation would have had if it were elicited on cross-examination (see People v Johnson, 91 AD3d1121, 1123 [2012], lv denied 18 NY3d 959 [2012]; People v Alcantara, 78 AD3d 721,722 [2010], lv denied 16 NY3d 827 [2011]; People v Armstead, 186 AD2d 440,440 [1992], lv denied 81 NY2d 760 [1992]). Moreover, although defendant's answers tothe People's cross-examination on this subject reflected unfavorably on his credibility, defendanthas not shown that counsel could have foreseen this result or "that counsel partook aninexplicably prejudicial course" (People v Benevento, 91 NY2d at 713 [internal quotationmarks and citations omitted]; compare People v Zaborski, 59 NY2d 863, 865 [1983]).
Viewed in their totality, the circumstances reveal that counsel was prepared, madeappropriate pretrial motions, pursued a credible defense strategy, made cogent opening andclosing statements, vigorously cross-examined the People's witnesses and obtained defendant'sacquittal of one charge. Considering all of defendant's ineffective assistance claims, individuallyand cumulatively, we are satisfied that he received meaningful representation (see People vMuniz, 93 AD3d at 876; People vFulwood, 86 AD3d 809, 811 [2011], lv denied 17 NY3d 952 [2011]; Peoplev Elwood, 80 AD3d at 990; compare People v Webb, 90 AD3d at 1564-1565; People v Miller, 63 AD3d 1186,1188 [2009]).
As to defendant's contention that he was improperly sentenced as a second felony offender,his failure to raise an objection to the sufficiency of the evidence proffered by the People tosupport the enhanced sentencing—particularly where County Court specifically affordeddefense counsel, who conferred with defendant, an opportunity to address any concerns withrespect thereto—renders this issue unpreserved for appellate review (see People v McDowell, 56 AD3d955, 955-956 [2008]; People vRobertson, 53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]). To theextent that defendant argues that his sentence is illegal and, accordingly, that he is not required topreserve this issue, our review of the record reveals that, while the People's predicate felonystatement did not conform to statutory requirements, the supporting documentation wassufficient. Furthermore, inasmuch as defense counsel acknowledged at sentencing that hereviewed such documentation and defendant raised no [*4]challenges to the periods of incarceration listed therein, therequirements of CPL 400.21 (2) have been substantially met (see People v Califano, 84 AD3d 1504, 1506-1507 [2011], lvdenied 17 NY3d 805 [2011]; Peoplev Caldwell, 80 AD3d 998, 999 [2011], lv denied 16 NY3d 857 [2011]; People v Ellis, 60 AD3d 1197,1198 [2009]).
We have considered defendant's remaining contentions, including that his sentence was harshand excessive, and find them to be unavailing.
Peters, P.J., Mercure, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Notably, counsel's question didnot result in evidence being elicited concerning the nature of, or facts underlying, defendant'sprior convictions (compare People vWebb, 90 AD3d 1563, 1564 [2011], amended 92 AD3d 1268 [2012]).