| People v Graham |
| 2015 NY Slip Op 01336 [125 AD3d 1496] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Leevarn Graham, Jr., Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered August 10, 2010. The judgment convicted defendant, upon a jury verdict, ofarson in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence imposed to anindeterminate term of imprisonment of 15 years to life and as modified the judgment isaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofarson in the first degree (Penal Law § 150.20 [1]), defendant contends thathe was denied effective assistance of counsel by a "litany of errors" by his trial counsel.Initially, we note that the majority of defendant's contentions "involve[ ] matters outsidethe 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 Russell, 83 AD3d1463, 1465 [2011], lv denied 17 NY3d 800 [2011]). We reject defendant'scontention with respect to those alleged instances of ineffective assistance of counsel thatare properly before us (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Contrary to defendant's contention, his attorney was not ineffective in failing to make aproper motion for a trial order of dismissal or to request a jury charge on a lesserincluded offense. It is well settled that "[t]he failure to provide a specific basis for a trialorder of dismissal that had no chance of success does not constitute ineffective assistanceof counsel" (People vWoodard, 96 AD3d 1619, 1621 [2012], lv denied 19 NY3d 1030[2012]; see generally People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]), andmotions to dismiss or reduce the indictment based on the insufficiency of the evidencehad virtually no chance of success. Indeed, we note that defendant does not challenge thesufficiency or the weight of the evidence on appeal, nor does he contend that any lesserincluded offenses should have been charged. Defendant's contention that trial counselwas ineffective in failing to retain an expert regarding the proof that a fire occurred isunavailing because "defendant has not established that such expert 'testimony wasavailable, that it would have assisted the jury in its determination or that he wasprejudiced by its absence' " (People v Woolson, 122 AD3d 1353, 1354 [2014]; see People v Nelson, 94 AD3d1426, 1426 [2012], lv denied 19 NY3d 999 [2012]). Defendant's contentionthat his counsel was ineffective by taking a position adverse to that of defendant duringsummation is without merit because counsel did not do so. In any event, "[t]o prevail ona claim of ineffective assistance of counsel, it is incumbent on defendant to demonstratethe absence of strategic or other legitimate explanations" for counsel's allegedshortcomings (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Taylor, 1 NY3d174, 177 [2003]), and defendant failed to make such a demonstration with respect tocounsel's comments during summation.
Defendant further contends that he was deprived of a fair trial by certain rulingsduring the trial. With respect to defendant's contention that the court erred in denying hisrequest for an adverse inference instruction regarding the fire investigator's failure torecord the interrogation of [*2]defendant, "[t]his Courthas repeatedly determined . . . that the failure to record a defendant'sinterrogation electronically does not constitute a denial of due process . . . ,and thus an adverse inference charge was not warranted" (People v Nathan, 108 AD3d1077, 1078 [2013], lv denied 23 NY3d 966 [2014] [internal quotation marksomitted]; see People vMcMillon, 77 AD3d 1375, 1375 [2010], lv denied 16 NY3d 897[2011]). Defendant's contention that he was deprived of a fair trial by the court's failureto give an intoxication charge likewise is without merit. Although such a charge mayhave been warranted, any error in failing to give such a charge is harmless because theproof of defendant's guilt was overwhelming, "and there is no significant probability thatdefendant would have been acquitted but for the error" (People v Thomas, 96 AD3d1670, 1672 [2012], lv denied 19 NY3d 1002 [2012]; see People vGreene, 186 AD2d 147, 147-148 [1992], lv denied 81 NY2d 840 [1993];cf. People v Ressler, 302 AD2d 921, 922 [2003]).
Defendant further contends that reversal is required based on prosecutorialmisconduct. Defendant did not object with respect to the prosecutor's allegedly improperelicitation of evidence, and thus failed to preserve for our review his contentionconcerning that alleged instance of misconduct (see People v Alexander, 51 AD3d 1380, 1383 [2008],lv denied 11 NY3d 733 [2008]). Although defense counsel did object regardingone alleged instance of misconduct during the prosecutor's summation, the courtsustained that objection and gave curative instructions to the jury. "Following the TrialJudge's curative instructions, defense counsel neither objected further, nor requested amistrial. Under these circumstances, the curative instructions must be deemed to havecorrected the error to the defendant's satisfaction" (People v Heide, 84 NY2d 943,944 [1994]). The prosecutor's other allegedly improper comment on summation was bothfair comment on the evidence and a fair response to defense counsel's summation (see People v Weaver, 118AD3d 1270, 1271 [2014], lv denied 24 NY3d 965 [2014]; People v Green, 60 AD3d1320, 1322 [2009], lv denied 12 NY3d 915 [2009]). In any event, weconclude with respect to both the preserved and the unpreserved contentions that anymisconduct that may have occurred "was not so egregious as to deprive defendant of afair trial" (People v Tolliver, 267 AD2d 1007, 1008 [1999], lv denied 94NY2d 908 [2000]).
We agree with defendant, however, that the sentence is unduly harsh and severeinsofar as the court imposed an indeterminate term of imprisonment of 25 years to life,particularly in light of defendant's lack of prior felony convictions and the minimaldamage and lack of injury that were caused by this incident. We therefore modify thejudgment, as a matter of discretion in the interest of justice (see CPL 470.15 [6][b]), by reducing the term of imprisonment to an indeterminate term of 15 years tolife.
We have reviewed defendant's remaining contention and conclude that it does notwarrant reversal or further modification of the judgment. Present—Scudder, P.J.,Smith, Centra, Lindley and Valentino, JJ.