| People v Hogue |
| 2015 NY Slip Op 08254 [133 AD3d 1209] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGerald E. Hogue, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Gerald E. Hogue, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered August 19, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that County Court erred in denying his application pursuant toBatson v Kentucky (476 US 79 [1986]) inasmuch as the prosecutor'sexplanations for striking the prospective juror were vague and nonspecific, therebycompelling an inference of discriminatory motive. We reject that contention. After thecourt determined that defendant had established a prima facie case of discrimination, theprosecutor explained that he was striking the juror because, throughout the proceedings,the prospective juror had "appeared completely bored and disinterested." Moreover, theprospective juror was "resting her head on her hand" and admitted that she was just"trying to stay awake." Inasmuch as the prospective juror was the first juror seated on thefirst panel, the prosecutor questioned whether she could be an interested andconscientious juror throughout the entire trial. Affording considerable deference to thecourt's determination that the prosecutor's specific and race-neutral reasons werenonpretextual (see People vHarris, 50 AD3d 1608, 1608 [2008], lv denied 10 NY3d 959 [2008];see generally People v Hernandez, 75 NY2d 350, 356 [1990], affd 500US 352 [1991]), we conclude that the court properly denied defendant's Batsonchallenge (see People v Artis, 262 AD2d 215, 215 [1999], affd 94 NY2d507 [2000], rearg denied 95 NY2d 849 [2000]; People v Alston, 307AD2d 1046, 1046 [2003], lv denied 1 NY3d 539 [2003]).
Defendant further contends that he was denied a fair trial by the admission ofevidence of an uncharged crime, i.e., physically striking a 15-year-old girl during a meleethat occurred before he was arrested for the instant offense (see generally People vVentimiglia, 52 NY2d 350 [1981]), as well as the lack of any curative instructionsrelated to that evidence. Although defendant concedes that his contention is notpreserved for our review because "he did not object to the testimony in question" (People v Paul, 78 AD3d1684, 1684 [2010], lv denied 16 NY3d 834 [2011]), he further contends thathe was denied effective assistance of counsel because defense counsel failed to object tosuch evidence, failed to request a Ventimiglia hearing, and failed to requestcurative instructions following the admission of the Ventimiglia evidence. In ourview, the evidence was admissible because it " 'provided backgroundinformation explaining' " why the police officers were called to the scene (People v Coldiron, 87 AD3d1383, 1383 [2011], lv denied 19 NY3d 959 [2012]), and "was needed tocomplete the narrative of the events" that prompted police involvement (People vMiller, 286 AD2d 981, 982 [2001], lv denied 97 NY2d 657 [2001]). Evenassuming, arguendo, that the court "erred in admitting evidence of [an uncharged crime]without a prior ruling that [such] evidence was admissible . . . and failed togive appropriate limiting instructions to the jury," we conclude that the errors areharmless in light of the overwhelming proof of defendant's guilt (People v Smith[appeal No. 1], 266 AD2d 889, 889 [1999], lv denied 94 NY2d 907 [2000];see People v Watkins, 229 AD2d 957, 957 [1996], lv denied 89 NY2d931 [1996]). Here, as in Watkins, "[t]here is no significant probability thatdefendant would have been acquitted but for [those errors]" (229 AD2d at 957; seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's further contention related to the alleged ineffective assistanceof counsel, we conclude that "any error on trial counsel's part in not [objecting to and innot] requesting a limiting instruction regarding the evidence of [the] past unchargedcrime[ ] does not rise to the level of ineffective assistance of counsel when that error isviewed in light of trial counsel's 'entire representation of defendant' " (People v Leonard, 129 AD3d1592, 1594 [2015], quoting People v Oathout, 21 NY3d 127, 132 [2013]). Moreover,defendant has "failed 'to demonstrate the absence of strategic or other legitimateexplanations' for the failure of defense counsel to pursue a . . .Ventimiglia hearing, or to object to the admission of [such evidence] at trial" (People v Webster, 56 AD3d1242, 1242-1243 [2008], lv denied 11 NY3d 931 [2009], quoting Peoplev Rivera, 71 NY2d 705, 709 [1988]).
Contrary to his contention, defendant was not denied his right to counsel when hisrequest to substitute assigned counsel was denied. "The court made the requisite minimalinquiry into defendant's reasons for requesting new counsel," but defendant failed toestablish good cause for the substitution of counsel (People v Goossens, 92 AD3d 1281, 1281-1282 [2012],lv denied 19 NY3d 960 [2012] [internal quotation marks omitted]). "We note thatthe court had previously granted defendant's request to substitute counsel, and that [t]heright of an indigent criminal defendant to the services of a court-appointed lawyer doesnot encompass a right to appointment of successive lawyers at defendant's option"(id. at 1282 [internal quotation marks omitted]; see generally People vSides, 75 NY2d 822, 824 [1990]).
Defendant contends that the court erred in granting the People's motion directing himto submit a buccal swab. We reject that contention. A court may issue an order to obtaincorporeal evidence, such as blood or saliva, from a suspect where the People establish:"(1) probable cause to believe the suspect has committed the crime, (2) a 'clear indication'that relevant material evidence will be found, and (3) the method used to secure it is safeand reliable" (Matter of Abe A., 56 NY2d 288, 291 [1982]; see People v Smith, 95 AD3d21, 24 [2012]). In opposition to the People's motion, defendant conceded that thePeople had established the third factor. Thus, to the extent that defendant contends onappeal that the People failed to meet that factor, that contention has been waived (see e.g. People v Jones, 110AD3d 1484, 1485 [2013], lv denied 22 NY3d 1157 [2014]; People v Laracuente, 21 AD3d1389, 1390 [2005], lv denied 6 NY3d 777 [2006]). With respect to theremaining two factors, we conclude that the court properly granted the People's motion.Where, as here, the request was made after the defendant has been indicted, "theindictment provided the court with the requisite clear indication that probative evidencecould be discovered from [the] buccal swab" (People v Small, 79 AD3d 1807, 1809 [2010], lvdenied 16 NY3d 837 [2011] [internal quotation marks omitted]), as well as therequisite "statutory authority and probable cause" (People v Pryor, 14 AD3d 723, 725 [2005], lvdenied 6 NY3d 779 [2006]).
Finally, defendant contends in his pro se supplemental brief that he was subjected toan illegal de facto arrest and, as a result, any physical and identification evidenceobtained as a result of that arrest should have been suppressed. That contention lacksmerit. As a preliminary matter, to the extent that defendant sought suppression ofevidence seized from a codefendant, that contention is not preserved for our reviewinasmuch as defendant failed to assert his claims of standing at the suppression hearing(see People v Carter, 86 NY2d 721, 722-723 [1995], rearg denied 86NY2d 839 [1995]). In any event, we conclude that defendant "lacks standing tochallenge the search of [the codefendant], since [defendant] was not the person againstwhom the search was directed[,] and he cannot complain that his constitutional privacyprotections have been infringed as a result of [the search of the codefendant]" (Peoplev Pursley, 158 AD2d 255, 256 [1990]; see People v Douglas, 23 AD3d 1151, 1152 [2005], lvdenied 6 NY3d 812 [2006]; People v Dawson, 269 AD2d 817, 818 [2000],lv denied 95 NY2d 833 [2000]).
Contrary to defendant's remaining contentions concerning the suppression ruling, weconclude that police officers had reasonable suspicion to stop and detain defendant afteran "identified citizen-informant" informed the officers that defendant, who was still inthe vicinity, had just assaulted a girl and was in possession of a weapon (People vBrown, 288 AD2d 152, 152 [2001], lv denied 97 NY2d 727 [2002]; see People v Whorley, 125AD3d 1484, 1484 [2015], lv denied 25 NY3d 1173 [2015]). Once detained,defendant abandoned a bag containing bullets, which was then seized by the officers.Inasmuch as defendant's abandonment of the bag was not caused by any illegal policeconduct, the court properly refused to suppress the evidence contained therein (seePeople v Sierra, 83 NY2d 928, 930 [1994]; People v McKinley, 101 AD3d 1747, 1749 [2012], lvdenied 21 NY3d 1017 [2013]). Present—Centra, J.P., Peradotto, Carni,Whalen and DeJoseph, JJ.