| People v Prince |
| 2015 NY Slip Op 04342 [128 AD3d 987] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Prince, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Steven R. Berhard of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AntheaH. Bruffee, and Jonathan S. Reiner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered June 29, 2011, convicting him of murder in the second degree andattempted murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgement is affirmed.
The defendant failed to preserve for appellate review his contention that theadmission of the testimony of a detective, inter alia, recounting his conversation with thedefendant's wife, a nontestifying witness, violated the defendant's rights under theConfrontation Clause of the Sixth Amendment to the United States Constitution (seeUS Const 6th Amend; People v Kelly, 58 AD3d 868 [2009]). The defendant didnot object to the testimony on those specific grounds; he raised only a hearsay objectionto this testimony (see People vSpeaks, 124 AD3d 689 [2015], lv granted 24 NY3d 1222 [2015]; People v Johnson, 40 AD3d1011, 1012 [2007]; People v Moreno, 303 AD2d 424 [2003]). In any event,the testimony "was properly admitted for the relevant, nonhearsay purpose of'establishing the reasons behind the detective's actions, and to complete the narrative ofevents leading to the defendant's arrest' " (People v Speaks, 124 AD3d at691, quoting People vRagsdale, 68 AD3d 897, 897-898 [2009]; see People v Reynoso, 2 NY3d 820, 821 [2004]; Peoplev Tosca, 98 NY2d 660 [2002]). In this regard, the trial court properly instructed thejury on the limited purpose of this testimony and that the testimony was not admitted forits truth (see People v Tosca, 98 NY2d at 661; People v Johnson, 40AD3d at 1012).
The defendant failed to preserve for appellate review his contention that the trialcourt failed to sufficiently admonish the jurors throughout the course of the trial (see People v Baksh, 43 AD3d1072, 1074 [2007]) and during deliberations (see People v Edwards, 69 AD3d 755 [2010]; People v Martin, 60 AD3d871 [2009]; People vWilliams, 46 AD3d 585 [2007]). The failure to give an instruction pursuant toCPL 270.40 and 310.10 is not a mode of proceedings error and, hence, must bepreserved for appellate review by a timely objection (see People v Kelly, 16 NY3d 803, 804 [2011]; People vEdwards, 69 AD3d at 755). In any event, the contention is without merit. The court'sfrequent admonitions to the jury during its preliminary instructions and throughout thetrial were adequate. Contrary to the defendant's contention, CPL 310.10 (2) is notapplicable (see People v Williams, 46 AD3d at 585).
The defendant waived his contention that he was deprived of his statutory and [*2]constitutional rights to a trial by a jury of his peers whenthe trial court discharged sworn jurors numbers 1 and 10 pursuant to CPL 270.35, asboth the defendant and his trial counsel expressly consented to the discharge (seePeople v Ortiz, 92 NY2d 955, 957 [1998]; People v Adonis, 119 AD3d 700, 701 [2014]). Thedefendant's contention that his waiver was not knowing, intelligent, and voluntary isunsupported by the record (cf.People v Canales, 121 AD3d 14, 17 [2014]).
Contrary to the defendant's contention, the record "reveals strategic or legitimateexplanations for the alleged instances of ineffective assistance" by the defendant's trialcounsel (People v Nash, 52AD3d 739, 739 [2008]).
The defendant's contention that the sentence imposed by the sentencing courtpunished him for exercising his right to a jury trial rather than accepting a plea offer isunpreserved for appellate review, as it was not raised before the sentencing court (seePeople v Hurley, 75 NY2d 887, 888 [1990]; People v Seymore, 106 AD3d 1033, 1034 [2013]). In anyevent, review of the record reveals no retaliation or vindictiveness against the defendantfor electing to proceed to trial (see People v Seymore, 106 AD3d at 1034; People v Hernandez, 44 AD3d684, 685 [2007]). Rather, the court relied upon the appropriate factors in sentencingthe defendant to a higher sentence than that which was offered during plea negotiations(see People v Hudyih, 60AD3d 1084, 1085 [2009]; People v Herrera, 16 AD3d 699, 699-700 [2005]). Thedefendant has failed to establish the existence of any "extraordinary circumstances thatwould warrant disturbing the sentence imposed" in the interest of justice (People v Bussey, 67 AD3d819, 820 [2009]). Rivera, J.P., Austin, Cohen and Duffy, JJ., concur.