| People v Walker |
| 2016 NY Slip Op 05585 [141 AD3d 678] |
| July 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Walker, Appellant. |
Drummond & Squillace, PLLC, Jamaica, NY (Stephen L. Drummond ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, William H. Branigan, and Josette Simmons of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered January 30, 2014, convicting him of robbery in the first degree(two counts), attempted robbery in the first degree, robbery in the second degree (twocounts), attempted robbery in the second degree, criminal possession of a weapon in thesecond degree (two counts), and criminal possession of stolen property in the fifthdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) denied him due process and a fair trial iswithout merit. In making its ruling, the court engaged in the requisite balancing ofprobative value against prejudicial effect, and reached an appropriate compromise rulingthat precluded inquiry into the underlying facts of the defendant's prior convictions (see People v Davis, 132 AD3d891 [2015]). The defendant failed to meet his burden of demonstrating that theprejudicial effect of the evidence of his prior convictions so outweighed the probativeworth of that evidence that exclusion was warranted (see People v Townsend, 70 AD3d 982 [2010]; People vBrennin, 184 AD2d 715 [1992]).
The defendant's contention that the Supreme Court improperly discharged a swornjuror and replaced her with an alternate is unpreserved for appellate review (see People v King, 110 AD3d1005 [2013]). The defendant consented to the juror's substitution. Although after heindicated his consent the defendant joined in the request by codefendant's counsel thatfurther inquiry be made, the defendant never indicated that he was withdrawing hisconsent or objected to the substitution of the juror (see People v Gueye, 122 AD3d 768 [2014]). In any event,contrary to the defendant's contention, the court conducted a reasonably thorough inquiryinto the juror's unavailability and providently exercised its discretion in replacing thejuror after determining that the juror would not appear within the two-hour period setforth in CPL 270.35 (2) (see People v Jeanty, 94 NY2d 507 [2000]).
The defendant's contention that he was denied the effective assistance of counsel iswithout merit. "[W]hen reviewing claims of ineffective assistance of counsel, care mustbe taken to avoid confusing true ineffectiveness with mere losing tactics. Theperformance of counsel must be viewed without the benefit of hindsight, and if counselprovided meaningful representation in the [*2]context ofthe evidence, the law, and the circumstances of the particular case, the constitutionalrequirement will have been met" (People v Butler, 143 AD2d 140, 140-141[1988]; see People v Satterfield, 66 NY2d 796, 798-799 [1985]; People vBaldi, 54 NY2d 137, 147 [1981]). "[I]t is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations for counsel's allegedshortcomings. . . . As long as the defense reflects a reasonable andlegitimate strategy under the circumstances and evidence presented, even if unsuccessful,it will not fall to the level of ineffective assistance" (People v Benevento, 91NY2d 708, 712-713 [1998] [internal quotation marks and citations omitted]). Here,defense counsel presented a reasonable strategy of attacking the credibility of thecomplainants, delivered coherent opening and closing statements consistent with thedefense strategy, and effectively cross-examined the prosecution's witnesses inaccordance with that strategy. Under the circumstances, the defendant was affordedmeaningful representation (seePeople v Alexander, 56 AD3d 793 [2008]).
The defendant's remaining contentions that he was denied due process and a fair trialdue to prosecutorial misconduct and the admission by the Supreme Court of testimonyregarding a Halloween mask and the collection and processing of DNA evidence areunpreserved for appellate review (see CPL 470.05 [2]). In any event, the claimsof prosecutorial misconduct and the improper admission of testimony regarding thecollection and processing of DNA evidence are without merit. While testimony regardinga Halloween mask observed in the vehicle in which the defendant had been riding shouldnot have been admitted at trial, the error was harmless, as the evidence of the defendant'sguilt was overwhelming, and there was no significant probability that the errorcontributed to the defendant's conviction (see People v Crimmins, 36 NY2d 230,241-242 [1975]). Eng, P.J., Roman, LaSalle and Barros, JJ., concur.