| People v Collins |
| 2013 NY Slip Op 05582 [109 AD3d 482] |
| August 7, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Collins, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andEmil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered November 10, 2009, convicting him of robbery in the first degreeand assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court violated CPL 310.30 anddeprived him of a fair trial by failing to meaningfully respond to a certain jury note isunpreserved for appellate review (see CPL 470.05 [2]; People v Ramirez, 15 NY3d824, 825 [2010]; People v Starling, 85 NY2d 509, 516 [1995]; People v Walston, 101 AD3d1156, 1157 [2012]; Peoplev Battle, 15 AD3d 413, 414 [2005]). In any event, the contention is withoutmerit (see People v Smith,57 AD3d 579, 580 [2008]; People v Albanese, 45 AD3d 691, 692 [2007]; People vBobadilla, 254 AD2d 493, 494 [1998]; People v Davis, 247 AD2d 404[1998]; People v Santiago, 231 AD2d 652, 652 [1996]; People vSanders, 227 AD2d 506 [1996]; People v Elie, 150 AD2d 719, 720 [1989]).
The defendant's contention that the prosecutor improperly cross-examined himregarding his prearrest silence and used his prearrest silence to impeach his credibilityduring summation is unpreserved for appellate review (see CPL 470.05 [2];People v Loaiza, 201 AD2d 587, 587-588 [1994]). In any event, any errorresulting from the prosecutor's use of the defendant's prearrest silence for impeachmentpurposes was harmless, since the evidence of the defendant's guilt was overwhelming,and there was no reasonable possibility that the error might have contributed to theconviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to the defendant's contention, the Supreme Court properly refused to admitthe criminal complaint into evidence as a prior inconsistent statement of a complainantabsent proof that the complainant signed, prepared, or verified the accuracy of thecomplaint (see People vBernardez, 85 AD3d 936, 937 [2011]; People v White, 272 AD2d 239,240 [2000]; People v Gooding, 202 AD2d 375, 376 [1994]). Since the defendantnever objected to the exclusion of the complaint on any constitutional ground, hiscontentions that the ruling deprived him of his constitutional rights to confront thewitnesses against him and to present a defense are unpreserved for appellate review(see [*2]CPL 470.05 [2]; People v Olibencia, 45 AD3d607, 608 [2007]). In any event, the contentions are without merit.
Defense counsel's failure to raise certain objections did not constitute ineffectiveassistance of counsel (seePeople v Stultz, 2 NY3d 277, 287 [2004]; People v Rivera, 71 NY2d705, 709 [1988]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Mastro, J.P., Lott, Austin and Sgroi, JJ., concur.