| People v Johnson |
| 2016 NY Slip Op 00848 [136 AD3d 1338] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEric W. Johnson, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Eric W. Johnson, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered November 4, 2010. The judgment convicted defendant, upon ajury verdict, of attempted murder in the second degree, assault in the first degree (twocounts) and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the periods of postrelease supervision imposed shall runconcurrently and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]). Contrary to defendant's contention, weconclude that Supreme Court did not abuse its discretion in denying his motion for amistrial, which was based on his untimely claims that a recording of a jailhousetelephone call admitted in evidence was incomplete, and that he received improperadvice from defense counsel (see generally People v De Mauro, 48 NY2d 892,893 [1979]; People vFlowers, 102 AD3d 885, 886 [2013], lv denied 21 NY3d 942 [2013], 23NY3d 962 [2014]). To the extent that defendant's contention is based upon mattersoutside the record on appeal, those matters should be addressed by a motion pursuant toCPL article 440 (see People vWhorley, 125 AD3d 1484, 1485 [2015], lv denied 25 NY3d 1173[2015]). We reject defendant's further contention that reversal is warranted based on thecourt's alleged mishandling of defendant's complaints about defense counsel. "Evenassuming, arguendo, that defendant's complaints suggest[ed] a serious possibility of goodcause for substitution requiring a need for further inquiry . . . , we concludethat the court afforded defendant the opportunity to express his objections concerning[defense counsel], and the court thereafter reasonably concluded that defendant's. . . objections had no merit or substance" (People v Singletary, 63 AD3d1654, 1654 [2009] [internal quotation marks omitted], lv denied 13 NY3d839 [2009]).
Defendant failed to preserve for our review his contention that the court erred inadmitting as demonstrative evidence a pry bar similar to the one used during thecommission of the crime (see CPL 470.05 [2]), and we decline to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant further contends that he was denied effective assistance of counsel basedon defense counsel's failure to object to the admission of the pry bar or the court'slimiting instruction with respect thereto. We reject that contention inasmuch as any suchobjection or argument " '[had] little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005]). Contrary to defendant's further contention, he was not deniedeffective assistance of counsel based on defense counsel's failure to request a justificationcharge inasmuch as there was no reasonable view of the evidence that would havepermitted the jury to find that defendant's use of deadly physical force was justified(see Penal Law § 35.15 [2] [a]; [*2]People v Patterson, 115AD3d 1174, 1176 [2014], lv denied 23 NY3d 1066 [2014]). In any event,we conclude that defendant has failed "to demonstrate the absence of strategic or otherlegitimate explanations" for defense counsel's failure to request a justification charge(People v Rivera, 71 NY2d 705, 709 [1988]). We reject defendant's furthercontention that the court erred in failing to instruct the jury, sua sponte, on the defense ofjustification. Even if such an instruction had been supported by the evidence, weconclude that the " 'court did not err in refraining from delivering such a chargesua sponte, as this would have improperly interfered with defense counsel'sstrategy' " (Patterson, 115 AD3d at 1176-1177).
Defendant failed to preserve for our review his challenges to the legal sufficiency ofthe evidence (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, weconclude that the conviction is supported by legally sufficient evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, the sentence is not unduly harsh andsevere. We note, however, that the certificate of conviction incorrectly reflects that thesentence imposed on count four is to be served consecutively to count two. The courtdirected, instead, that count three is to be served consecutively to count two, and thatcount four is to be served concurrently with count two. The certificate of conviction musttherefore be amended accordingly (see People v Carrasquillo, 85 AD3d 1618, 1620 [2011],lv denied 17 NY3d 814 [2011]). Finally, although not raised by defendant, weconclude that "the court erred in imposing consecutive periods of postreleasesupervision" (People vAllard, 107 AD3d 1379, 1379 [2013]). "Penal Law § 70.45 (5) (c)requires that the periods of postrelease supervision merge and are satisfied by the serviceof the longest unexpired term" (Allard, 107 AD3d at 1379). "Because we cannotallow an illegal sentence to stand" (id.), we modify the judgmentaccordingly.
We have considered the contentions of defendant in his pro se supplemental briefand conclude that, to the extent that they have not been addressed by our decision herein,they either are without merit or involve matters outside the record.Present—Centra, J.P., Peradotto, Carni, Lindley and DeJoseph, JJ.