| People v Arroyo |
| 2013 NY Slip Op 07315 [111 AD3d 1299] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlosJ. Arroyo, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered April 15, 2011. The judgment convicted defendant, upon a jury verdict,of criminal possession of a weapon in the second degree and reckless endangerment inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and reckless endangerment in the first degree (§ 120.25). By makingonly a general motion for a trial order of dismissal, defendant failed to preserve for ourreview his contention that the evidence is legally insufficient to support the conviction(see People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Defendantalso contends, however, that the verdict is against the weight of the evidence, and " 'wenecessarily review the evidence adduced as to each of the elements of the crimes in thecontext of our review of [that contention]' " (People v Stepney, 93 AD3d 1297, 1298 [2012], lvdenied 19 NY3d 968 [2012]; see People v Danielson, 9 NY3d 342, 348-349 [2007]).Viewing the evidence in light of the elements of the crimes as charged to the jury, weconclude that "the People proved beyond a reasonable doubt all elements of the crimescharged" (Stepney, 93 AD3d at 1298; see Danielson, 9 NY3d at 349;see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that Supreme Court erred in denying his motion topreclude the People from introducing in evidence a printout of a mugshot photographcontaining defendant's signed handwritten statement that the person in the photographsold him a vehicle on the evening of defendant's arrest. We reject defendant's contentionthat he was entitled to preclusion on the ground that the printout was not included in theCPL 710.30 notice. The People's notice of intention to introduce statements by defendantat trial " 'was sufficient under CPL 710.30 to apprise the defendant that they would beintroducing [the printout] . . . since the statements contained the sum andsubstance of what [the printout] indicated' " (People v Mikel, 303 AD2d 1031,1031 [2003], lv denied 100 NY2d 564 [2003]; see People v Bennett, 56NY2d 837, 839 [1982]; Peoplev Peppard, 27 AD3d 1143, 1143-1144 [2006], lv denied 7 NY3d 793[2006]).[*2]
Contrary to defendant's contention, the courtproperly denied his request for a missing witness charge. "[D]efendant's request for sucha charge, made after the close of proof, was untimely" (People v Rosario, 277AD2d 943, 943 [2000], affd 96 NY2d 857 [2001]). In any event, defendantfailed to meet his burden of establishing his entitlement to such a charge inasmuch as theuncalled witness's testimony would have been cumulative (see People v Savinon,100 NY2d 192, 197 [2003]; People v Gonzalez, 68 NY2d 424, 427 [1986]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. Defense counsel's failure to object to allegedly improper comments by theprosecutor on summation does not constitute ineffective assistance of counsel. Theprosecutor's comments either were "not so egregious as to deny defendant a fair trial" ordid not in fact constitute prosecutorial misconduct (People v Lyon, 77 AD3d 1338, 1339 [2010], lvdenied 15 NY3d 954 [2010]). To the extent that defendant contends that he wasdenied effective assistance of counsel based upon defense counsel's failure to make amore specific trial order of dismissal motion, request a probable cause hearing, or moveto suppress his statements to the police and physical evidence found in the vehicle he wasdriving, his contention is without merit because he failed to demonstrate that the motions,if made, would have been successful (see People v Noguel, 93 AD3d 1319, 1320 [2012], lvdenied 19 NY3d 965 [2012]).
We conclude that the sentence is not unduly harsh or severe. We note, however, thatthe certificate of conviction fails to reflect that defendant was sentenced to a five-yearperiod of postrelease supervision, and it must therefore be amended to reflect that fact(see People v Smoke, 43AD3d 1332, 1333 [2007], lv denied 9 NY3d 1039 [2008]).Present—Scudder, P.J., Smith, Fahey, Sconiers and Valentino, JJ.