| People v Tackman |
| 2016 NY Slip Op 03967 [139 AD3d 537] |
| May 19, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ronald Tackman, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (JahaanShaheed of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgments, Supreme Court, New York County (Richard D. Carruthers, J.), renderedJuly 21, 2011, as amended August 15, 2011, convicting defendant, after a jury trial, ofrobbery in the second degree (five counts) and attempted robbery in the second degree,and sentencing him to an aggregate term of 25 years to life, and also convictingdefendant, upon his plea of guilty, of escape in the first degree and criminal possessionof a weapon in the third degree, and sentencing him, as a second felony offender, to aconsecutive aggregate term of three to six years, unanimously affirmed. Order, samecourt (Daniel P. FitzGerald, J.), entered on or about October 24, 2014, which denieddefendant's CPL 440.10 motion to vacate the abovementioned judgments of convictionafter trial, unanimously affirmed.
Defendant received effective assistance of counsel under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Stricklandv Washington, 466 US 668 [1984]). Defendant has not shown that he was prejudicedby the fact that, in connection with a motion to suppress statements, his counsel did notargue that defendant had invoked his right to remain silent and did not exploit evidencepresented at a Queens County hearing that would support such a claim. There is noreasonable probability that any such effort would have led to suppression, because therecord indicates that, under all the circumstances, defendant's right to remain silent wasscrupulously honored (see Michigan v Mosley, 423 US 96, 104 [1975]). Even ifthe Queens testimony is viewed most favorably to defendant, and even if it is assumedthat defendant initially invoked his right of silence in a conversation with a Manhattandetective, defendant has not shown that a Queens detective's later questioning wasunlawful and that it rendered defendant's ultimate confession to the Manhattan detectiveinadmissible (see e.g. People vLogan, 19 AD3d 939, 941-942 [3d Dept 2005], lv denied 5 NY3d 830[2005]; People v Cicciarelli, 145 AD2d 938, 938-939 [4th Dept 1988], lvdenied 73 NY2d 975 [1989]). Thus, defendant did not meet his burden ofestablishing prejudice, and there was no factual issue requiring a hearing on the CPL440.10 motion.
Defendant's remaining contentions are unpreserved and we decline to review them inthe [*2]interest of justice. We do not find that any lack ofpreservation should be excused on the ground of ineffective assistance. As an alternativeholding, we find no basis for reversal. The challenged portions of the prosecutor'ssummation generally constituted permissible comments on the evidence, constituting fairresponses to defense counsel's summation arguments, and there was nothing so egregiousas to warrant a new trial (see People v Overlee, 236 AD2d 133 [1st Dept 1997],lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114,118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). The court'sSandoval ruling, permitting questioning about defendant's escape conviction, didnot violate the rule against impeachment regarding nonfinal convictions (see People v Cantave, 21NY3d 374, 379-381 [2013]), because the escape conviction was related to therobbery charges and the underlying facts of the escape were, in any event, probative ofconsciousness of guilt.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P.,Renwick, Andrias, Kapnick and Kahn, JJ.