| People v Reed |
| 2014 NY Slip Op 02182 [115 AD3d 1334] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Edward Reed, Appellant. |
—[*1] Edward Reed, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered January 3, 2007. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (two counts), aggravated assault upon a police officer or apeace officer and criminal possession of a weapon in the second degree (two counts).
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 aggravated assault upon a police officer or a peace officer (Penal Law §120.11) and two counts each of burglary in the first degree (§ 140.30 [1], [2]) andcriminal possession of a weapon in the second degree (§ 265.03 [former (2)]).Defendant contends that reversal is required based on a Brady violation, i.e., theprosecutor's failure to turn over copies of police reports concerning an earlier unrelatedshooting, one of which contained a hearsay statement from a confidential informantimplicating one of the prosecution witnesses who testified in this case. Even assuming,arguendo, that the reports were required to be turned over notwithstanding the fact thatthe majority of them indicated that the witness did not commit the crime and indeed thatthe crime was directed toward that witness in retaliation for another incident, and furtherassuming, arguendo, that the information was possessed by the prosecution and not bythe defense, we conclude that reversal is not warranted. "[T]here is [no] reasonableprobability that had it been disclosed to the defense, the result would have beendifferent—i.e., a probability sufficient to undermine the [reviewing] court'sconfidence in the outcome of the trial" (People v Bryce, 88 NY2d 124, 128[1996]; see People vHunter, 11 NY3d 1, 5 [2008]). That witness was heavily cross-examined at trialconcerning his numerous convictions, the serious new charges still pending against him,his failure to come forward with information concerning this defendant until after thewitness was arrested on those new charges, and the benefit that he received with respectto those charges in return for testifying against this defendant. Thus, there is noreasonable probability that additional cross-examination of that witness concerning onemore charge would have yielded a different result (see generally People v Salton, 74 AD3d 997, 998-999[2010], lv denied 15 NY3d 895 [2010]).[*2]
By failing to object to County Court's ultimateSandoval ruling, defendant failed to preserve for our review his present challengeto that ruling (see People vWilson, 104 AD3d 1231, 1233 [2013], lv denied 21 NY3d 1011 [2013],reconsideration denied 21 NY3d 1078 [2013]; People v Williams, 101 AD3d1730, 1732 [2012], lv denied 21 NY3d 1021 [2013]). In any event, thatcontention is without merit inasmuch as the record establishes that the court "weighedappropriate concerns and limited both the number of convictions and the scope ofpermissible cross-examination" (People v Hayes, 97 NY2d 203, 208 [2002]).
In addition to his contention concerning the court's Sandoval ruling,defendant contends that the court improperly allowed the People to present evidence thathe had a prior conviction when a prosecution witness testified that the People's DNAexpert sent a DNA profile, which was obtained from evidence at the crime scene, to theCODIS database of convicted felons for comparison. Defendant failed to preserve thatcontention for our review (see CPL 470.05 [2]; see generally People v Page,105 AD3d 1380, 1382 [2013]), and we conclude in any event that the People did notin fact thereby present evidence of a prior conviction. The expert did not testify that amatch was obtained from that source after she submitted the profile, and thus there wasno evidence that defendant's DNA was in the database of felons. Similarly, we rejectdefendant's contention that the court erred in admitting evidence that the police seizedsneakers from his house that were consistent with sneaker prints left at the scene of thecrime, inasmuch as such evidence was relevant to defendant's guilt (see e.g. People vJurgensen, 288 AD2d 937, 938 [2001], lv denied 97 NY2d 684 [2001];People v Turcotte, 252 AD2d 818, 819 [1998], lv denied 92 NY2d 1054[1999]; People v Samiec, 181 AD2d 983, 983 [1992]).
Defendant further contends that the court erred in denying the request of acodefendant's attorney for a jury instruction that one of the witnesses was an accomplicewhose testimony required corroboration. "Defendant failed to join in [the] codefendant'srequest [for that] charge . . . and thus has failed to preserve his presentcontention for our review" (People v Hill, 300 AD2d 1125, 1126 [2002], lvdenied 99 NY2d 615 [2003]; see People v Thompson, 59 AD3d 1115, 1116-1117[2009], lv denied 12 NY3d 860 [2009]; People v Fuller, 286 AD2d 910,911 [2001], lv denied 97 NY2d 682 [2001]). In any event, we conclude that "thefailure of the court to give that instruction is of no moment, inasmuch as the testimony ofthe witness was in fact amply corroborated" (People v Fortino, 61 AD3d 1410, 1411 [2009], lvdenied 12 NY3d 925 [2009]).
Defendant contends in his main and pro se supplemental briefs that he was deniedeffective assistance of counsel based on, inter alia, defense counsel's failure to challengea prospective juror or object to the expert's testimony that the DNA profile from thebaseball hat was submitted to the CODIS database. We reject that contention, inasmuchas defendant "failed to show the absence of a strategic explanation for defense counsel's"alleged failures (People vMendez, 77 AD3d 1312, 1312-1313 [2010], lv denied 16 NY3d 799[2011]; see People v Benevento, 91 NY2d 708, 712-713 [1998]). Furthermore,defense counsel was not ineffective in failing to pursue his motion to suppress DNAevidence obtained from liquid that defendant spit out in his driveway, which the policeseized therefrom. It is well settled that "[t]here can be no denial of effective assistance of. . . counsel arising from [defense] counsel's failure to 'make a motion orargument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]), and it is clear that themotion was subject to denial on several grounds, among them that defendant failed topost signs excluding the public from the exterior areas of his property and that defendanthad no reasonable expectation of privacy in the liquid that he spit out. Defendant'sremaining contentions concerning ineffective assistance of counsel "involve[ ] mattersoutside the record on appeal, and thus the proper procedural vehicle for raising [thosecontentions] is by way of a motion pursuant to CPL 440.10" (People v Wilson, 49 AD3d1224, 1225 [2008], lv denied 10 NY3d 966 [2008]; see People v Hall, 50 AD3d1467, 1469 [2008], lv denied 11 NY3d 789 [2008]). Viewed as a whole, therecord establishes that defense counsel provided [*3]meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
As we noted with respect to the prosecutor's summation in the context of the appealby a codefendant, the majority of defendant's contentions in his pro se supplemental briefwith respect to alleged instances of prosecutorial misconduct during summation are notpreserved for our review (see CPL 470.05 [2]) "and, in any event, we concludethat any improprieties were not so pervasive or egregious as to deprive defendant of afair trial" (People vFreeman, 78 AD3d 1505, 1505-1506 [2010], lv denied 15 NY3d 952[2010] [internal quotation marks omitted]). In addition, viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
The sentence is not unduly harsh or severe. "We note, however, that the aggregatemaximum term of the sentence exceeds the 40-year limitation set forth in Penal Law§ 70.30 (1) (e) (iv), and thus the sentence should be recalculated accordingly bythe Department of [Corrections and Community Supervision]" (Freeman, 78AD3d at 1506). We have considered defendant's remaining contentions raised in hismain and pro se supplemental briefs and conclude that none warrant reversal ormodification of the judgment. Present—Smith, J.P., Fahey, Lindley, Sconiers andValentino, JJ.