| People v Franks |
| 2016 NY Slip Op 01695 [137 AD3d 936] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Franks, Appellant. |
Lynn W. L. Fahey, New York, NY (Lauren E. Jones of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart andPaul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J.), rendered April 23, 2012, convicting him of assault in the second degree (twocounts), obstructing governmental administration in the second degree, and resistingarrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his conviction was not supported by legally sufficientevidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10[1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review of the evidence pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The Supreme Court did not err in permitting the People to cross-examine thedefendant as to the underlying facts of a prior conviction, which the court, after a pretrialSandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]), hadpreviously ruled would be precluded, as the defendant opened the door to such testimonyon direct examination (see People v Rodriguez, 85 NY2d 586, 591 [1995];People v Fardan, 82 NY2d 638, 646 [1993]; People v Perez, 120 AD3d 514, 514 [2014]).
The Supreme Court providently exercised its discretion in permitting the People tooffer a recording from Rikers Island of the defendant's phone conversation with a friendas evidence of consciousness of guilt (see People v Bennett, 79 NY2d 464, 470[1992]; People v Moses, 63 NY2d 299, 308 [1984]; People v Yazum, 13NY2d 302, 304 [1963]; Peoplev Braithwaite, 126 AD3d 993, 995 [2015]; People v De Vivo, 282AD2d 770, 772 [2001]; People v Hernandez, 118 AD2d 729 [1986]). Contrary tothe defendant's contention, the court also providently exercised its discretion inpermitting the People to call a rebuttal witness to authenticate the recordings (seeCPL 260.30 [7]; People vBoyce, 54 AD3d 1052, 1053 [2008]; People v Harris, 232 AD2d 426,426 [1996]).
The defendant failed to preserve for appellate review his contention that the Supreme[*2]Court should have provided a limiting instruction asto the probative value of the consciousness of guilt evidence, since he never made such arequest (see CPL 470.05 [2]; People v Baxter, 102 AD3d 805 [2013]; People vHilton, 210 AD2d 180 [1994]; People v Singleton, 121 AD2d 752 [1986]).In any event, to the extent that the failure to give such an instruction may be considerederror, it was harmless, in light of the overwhelming evidence of the defendant's guilt, andthe fact that there is no significant probability that but for the failure to give thatinstruction, the jury would have acquitted the defendant (see People v Arroyo, 131AD3d 1257, 1258 [2015]; People v Brody, 82 AD3d 784, 785 [2011]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel under the New York Constitution because, viewing defensecounsel's performance in totality, counsel provided meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d137, 147 [1981]). Moreover, the defendant was not deprived of the effective assistanceof counsel under the United States Constitution (see Strickland v Washington,466 US 668 [1984]).
The defendant also argues that he was deprived of the right to counsel because thephone calls that he made to friends while he was incarcerated at Rikers Island wererecorded. This contention is unpreserved for appellate review (see People vNarayan, 54 NY2d 106, 110 [1981]) and, in any event, without merit. Leventhal,J.P., Dickerson, Roman and Maltese, JJ., concur.