| People v Koonce |
| 2013 NY Slip Op 07297 [111 AD3d 1277] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vNorman Koonce, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered October 31, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Erie County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [3]). Contrary to the contention ofdefendant, we conclude that, viewing the evidence in light of the elements of the crimesas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant next contends that he was denied his right to counsel when the policequestioned him concerning the instant crimes while he was in custody and represented bycounsel in an unrelated criminal case. We reject that contention. "Under New York'sindelible right to counsel rule, a defendant in custody in connection with a criminalmatter for which he is represented by counsel may not be interrogated in the absence ofhis attorney with respect to that matter or an unrelated matter unless he waives the rightto counsel in the presence of his attorney" (People v Lopez, 16 NY3d 375, 377 [2011]). However,"[w]hen the prior charge has been disposed of by dismissal or conviction, the indelibleright to counsel disappears and the defendant is capable of waiving counsel on the newcharge" (People v Bing, 76 NY2d 331, 344 [1990], rearg denied 76NY2d 890 [1990]). Here, a police detective testified at the Huntley hearing thatdefendant had been sentenced on the unrelated criminal case before the detectivequestioned him regarding these crimes, and County Court therefore properly determinedthat the police were not precluded from questioning him regarding the instant crimes(see People v Brant, 277 AD2d 1022, 1022 [2000], lv denied 96 NY2d756 [2001]). We reject defendant's contention that the right to counsel lasted until at least30 days after sentencing, to allow for the filing of a notice of appeal (see People vColwell, 65 NY2d 883, 885 [1985]).
Defendant further contends that he was denied effective assistance of counselbecause [*2]defense counsel failed to request a jurycharge on the voluntariness of defendant's statements to the police and failed to object tomultiple instances of alleged prosecutorial misconduct on summation. With respect to thejury charge, we conclude that defendant failed to demonstrate the absence of a strategicor other legitimate explanation for defense counsel's alleged error (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Sinclair, 90 AD3d 1518, 1518 [2011]). Indeed,we note that the statements of defendant to the police were exculpatory. With respect tothe alleged instances of prosecutorial misconduct, we agree with the People that theprosecutor did not improperly bolster the adequacy of the police investigation or thetestimony of the prosecution witnesses but, rather, the prosecutor's comments were fairresponse to defense counsel's summation (see People v Williams, 98 AD3d 1279, 1280 [2012], lvdenied 20 NY3d 1066 [2013]; People v Rivers, 82 AD3d 1623, 1624 [2011], lvdenied 17 NY3d 904 [2011]). Thus, defense counsel's failure to object to thosecomments cannot be said to have deprived defendant of effective assistance of counsel(see People v Hill, 82AD3d 1715, 1716 [2011], lv denied 17 NY3d 806 [2011]). While we agreewith defendant that the prosecutor improperly denigrated the defense, that misconductwas not so egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d1140, 1143 [2013]; Peoplev Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]),and defense counsel's failure to object to those comments did not deprive defendant ofeffective assistance of counsel (see Heck, 103 AD3d at 1143; People v Lyon, 77 AD3d1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).
Defendant contends that the court erred in admitting in evidence a portion of arecorded jailhouse telephone call made by defendant. He contends that the taping of thetelephone call without a warrant was prohibited inasmuch as, although defendant waswarned that calls may be monitored or recorded, he was not expressly warned of thepossible use by law enforcement of the statements made in the recorded calls. Defendantfurther contends that the admission of the conversation amounted to the admission ofevidence of an uncharged crime. Defendant's contentions are not preserved for ourreview (see CPL 470.05 [2]) and, in any event, they are without merit. Aneavesdropping warrant is not required when one of the parties to the conversationconsents to the eavesdropping (see People v Lasher, 58 NY2d 962, 963 [1983];People v Wood, 299 AD2d 739, 740-741 [2002], lv denied 99 NY2d 621[2003]), and we conclude that defendant impliedly consented to the recording here(see generally Curley v Board of Trustees of Vil. of Suffern, 213 AD2d 583, 583[1995], appeal dismissed 87 NY2d 860 [[1995]; United States vFriedman, 300 F3d 111, 123 [2002], cert denied 538 US 981 [2003]). Wefurther conclude that the conversation involved only the present offense, not anuncharged crime. Contrary to defendant's further contention, the sentence is not undulyharsh or severe.
We agree with defendant, however, that the court erred in failing to rule ondefendant's renewed motion to "rule on whether the jurors who voted this indictmentwere present for all the testimony presented on this case" (see People v Spratley, 96AD3d 1420, 1421 [2012], following remittal 103 AD3d 1211 [2013], lvdenied 21 NY3d 1020 [2013]). In an omnibus motion, defense counsel requested anattendance sheet of grand jurors hearing proof on the days on which evidence waspresented on this case, and a list of the grand jurors voting the indictment. The court'sorder holding that the grand jury evidence was legally sufficient did not address that partof defendant's omnibus motion concerning the attendance of the grand jurors who votedthe indictment, and defense counsel therefore renewed that part of his omnibus motion.The record does not reflect that the court ever ruled on defendant's renewed motion, anda failure to rule on a motion cannot be deemed a denial thereof (see id.; see also People v Concepcion,17 NY3d 192, 197-198 [2011]). We therefore hold the case, reserve decision andremit the matter to County Court to determine defendant's renewed motion.Present—Scudder, P.J., Centra, Carni, Lindley and Sconiers, JJ.