| People v Jones |
| 2016 NY Slip Op 02927 [138 AD3d 541] |
| April 19, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Jones, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), renderedDecember 7, 2012, as amended February 27, 2015, convicting defendant, after a jurytrial, of burglary in the first degree, robbery in the first degree (two counts) and one countof criminal possession of a weapon in the second degree, and sentencing him, as asecond felony offender, to an aggregate term of 15 years, unanimously affirmed.
Defendant did not preserve his claim that the People improperly introduced evidenceof his prearrest "selective silence" (People v Williams, 25 NY3d 185, 188 [2015]). Defendanthad ample opportunity to place the ground of his objection on the record, and neither hisgeneral objection, nor his present speculation as to what transpired at an unrecordedbench conference, suffices to satisfy the preservation requirement. We decline to reviewthis claim in the interest of justice. As an alternative holding, we find that, unlike thesituation in Williams (id. at 191-194), the police testimony at issue did notconvey to the jury that defendant had refused to answer questions. Instead, after theofficer testified that when stopped by the police defendant volunteered that he had beenrobbed, the People simply clarified that this unelaborated remark was the totality ofdefendant's statement.
Defendant likewise failed to preserve his claim that he was entitled to introduce, notfor the statement's truth and without revealing its substance, the fact that he made asecond statement several hours after his initial statement. Nothing in the record,including the court's summary of an unrecorded bench conference, establishes thatdefendant ever made an offer of proof that was sufficient to alert the court to this theoryof admissibility (see People v Arroyo, 77 NY2d 947 [1991]), and we similarlydecline to review the claim in the interest of justice. As an alternative holding, we findthat defendant has not established the relevance of the fact that the statement was made,or that it was admissible under the theory that the People opened the door to it.
The court's charge on reasonable doubt was not constitutionally deficient. Althoughthe Criminal Jury Instructions contain the "preferred phrasing," the court's charge,viewed as a whole, conveyed the appropriate principles and did not dilute the standard ofproof required (see People v Cubino, 88 NY2d 998, 1000 [1996]). To the extentthat defendant is arguing that the court should have included the specific language hesuggests on appeal, that claim is unpreserved and we decline to review it in the interest ofjustice. As an alternative holding, we find no basis for reversal.
We have considered and rejected defendant's ineffective assistance of counsel claimsrelating to the issues we have found to be unpreserved (see People v Benevento,91 NY2d 708, [*2]713-714 [1998]; Strickland vWashington, 466 US 668 [1984]). Accordingly, we do not find that any lack ofpreservation may be excused on the ground of ineffective assistance.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Renwick, Moskowitz, Kapnick and Kahn, JJ.