| People v Garcia |
| 2017 NY Slip Op 02195 [148 AD3d 1559] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v FrankGarcia, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Frank Garcia, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedDecember 16, 2009. The judgment convicted defendant, upon a jury verdict, of murder in thefirst degree (two counts) and attempted murder in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed on count three of the indictment and as modified the judgmentis affirmed, and the matter is remitted to Monroe County Court for resentencing on thatcount.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]) andattempted murder in the first degree (§§ 110.00, 125.27 [1] [a] [viii]; [b]). Wereject defendant's contention that County Court erred in denying his challenges for cause withrespect to three prospective jurors. "CPL 270.20 (1) (b) provides that a party may challenge apotential juror for cause if the juror 'has a state of mind that is likely to preclude him [or her]from rendering an impartial verdict based upon the evidence adduced at the trial' " (People v Harris, 19 NY3d 679,685 [2012]). A " 'prospective juror whose statements raise a serious doubt regarding theability to be impartial must be excused unless the juror states unequivocally on the record that heor she can be fair and impartial' " (id. at 685, quoting People v Chambers,97 NY2d 417, 419 [2002]; see People vWarrington, 28 NY3d 1116, 1119-1120 [2016]). Thus, " 'where [a] prospectivejuror[ ] unambiguously state[s] that, despite preexisting opinions that might indicate bias,[he or she] will decide the case impartially and based on the evidence, the trial court hasdiscretion to deny the challenge for cause if it determines that the juror's promise to be impartialis credible' " (Warrington, 28 NY3d at 1120).
The first prospective juror did not express any doubt concerning his ability to be fair andimpartial, and the court therefore properly denied the for cause challenge (see People v DeFreitas, 116 AD3d1078, 1079-1080 [2014], lv denied 24 NY3d 960 [2014]; People v Campanella, 100 AD3d1420, 1421 [2012], lv denied 20 NY3d 1060 [2013]). The second prospective jurorexpressed a preexisting opinion that would indicate bias, but she unambiguously stated uponfurther questioning that she would decide the case impartially based on the evidence (seeWarrington, 28 NY3d at 1120). Even assuming, arguendo, that we agree with defendant thatthe stricter standard set forth in People v Torpey (63 NY2d 361, 368 [1984], reargdenied 64 NY2d 885 [1985]) applies with respect to this prospective juror, we conclude thatthe record does not show any possibility that the prospective juror's impressions of defendantmight influence her verdict. Finally, with respect to the third prospective juror, her statement thatshe would give more credit to the testimony of police officers raised serious doubt about herability to be impartial (see People vMitchum, 130 AD3d 1466, 1467 [2015]; People v Lewis, 71 AD3d 1582, 1583 [2010]), but the courtthereafter elicited an unequivocal assurance that the prospective juror would decide the caseimpartially (see People v Rogers,103 AD3d 1150, 1152 [2013], lv denied 21 NY3d 946 [2013]).
Defendant contends that the court should have granted his motion for a mistrial after twoprospective jurors indicated that they heard other prospective jurors discussing the case whileawaiting voir dire. We conclude that the court did not abuse its discretion in denying the motion(see People v Reader, 142 AD3d1109, 1109 [2016]; People vDombroff, 44 AD3d 785, 787 [2007], lv denied 9 NY3d 1005 [2007]). The courtconducted an inquiry of several deputies who were in the courtroom, and the deputies indicatedthat they did not hear any discussion amongst the prospective jurors about the case. In addition,the court questioned prospective jurors during individual voir dire if they had already formed anopinion as to defendant's guilt or innocence.
By failing to pursue his motion to suppress evidence or object to the introduction of suchevidence at trial, defendant abandoned his contention that the court should have conducted ahearing on the motion (see People vMulligan, 118 AD3d 1372, 1376 [2014], lv denied 25 NY3d 1075 [2015]). Wereject defendant's contention that counsel's alleged failure to pursue the motion constitutedineffective assistance of counsel. Defendant did not meet his burden of establishing that therewas no "strategic or other legitimate explanation[ ]" (People v Rivera, 71 NY2d 705, 709[1988]) for counsel's alleged failure to pursue the motion. "There can be no denial of effectiveassistance of counsel arising from counsel's failure to 'make a motion . . . that haslittle or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]). Here, considering the People's responsivepapers, which set forth the police investigation and identification of defendant as the suspect inthe shootings, we conclude that there is no support in the record for a colorable argument forsuppression inasmuch as the police had probable cause to arrest defendant (see People v Carver, 27 NY3d418, 420-421 [2016]; People v Motter, 235 AD2d 582, 586 [1997], lv denied89 NY2d 1038 [1997]). Defendant's other allegations of ineffective assistance of counsel setforth in his main brief are also simple disagreements with trial strategy and thus cannot serve as abasis for relief (see People vBarboni, 90 AD3d 1548, 1548 [2011], affd 21 NY3d 393 [2013]). Defendant'sallegations of ineffective assistance of counsel raised in his pro se supplemental brief are alsowithout merit, and we conclude that the evidence, the law, and the circumstances of this case,viewed in totality and as of the time of the representation, establish that defendant receivedmeaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant's contention that the grand jury proceeding was defective because the indictmentwas filed after the grand jury term expired for defendant's case is not preserved for our review(see People v Soto [appeal No. 2], 163 AD2d 889, 889 [1990], lv denied 76NY2d 991 [1990]), and we decline to exercise our power to review it as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). As the People correctly concede, thesentence of life without parole for attempted murder in the first degree is illegal (seePenal Law § 60.05 [2]). We therefore modify the judgment by vacating the sentenceimposed on count three, and we remit the matter to County Court for resentencing on thatcount.
Defendant failed to preserve for our review his challenge in his pro se supplemental brief tothe use of information from certain cellular phone records (see People v Hall, 86 AD3d 450, 451-452 [2011], lv denied19 NY3d 961 [2012], cert denied 568 US &mdash, 133 S Ct 1240 [2013]). We decline toexercise our power to review that challenge as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant's challenge in his pro se supplemental brief to thesufficiency of the evidence before the grand jury is not properly before us. " 'Havingfailed to challenge the [legal] sufficiency of the trial evidence, defendant may not now challengethe [legal] sufficiency of the evidence before the grand jury' " (People v McCoy, 100 AD3d 1422,1423 [2012]; see People v Smith, 4NY3d 806, 807-808 [2005]; Peoplev Lane, 106 AD3d 1478, 1481-1482 [2013], lv denied 21 NY3d 1043 [2013]).We have considered the remaining contentions of defendant raised in his pro se supplementalbrief and conclude that they are without merit. Present—Centra, J.P., Peradotto, Curran,Troutman and Scudder, JJ.