| People v Vargas |
| 2017 NY Slip Op 07801 [155 AD3d 1530] |
| November 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Braolio J. Vargas, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered June13, 2013. The judgment convicted defendant, upon a jury verdict, of attempted assault in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]). Wereject defendant's contention that County Court erred in denying his challenge for cause to aprospective juror on the ground that, in response to questioning by defense counsel, theprospective juror said that he would "certainly try" to be fair and impartial. Contrary todefendant's contention, the word "try" is not a talismanic word that automatically renderedequivocal the prospective juror's assertion that he could be fair (see People v Rivera, 33 AD3d 303,305 [1st Dept 2006], affd 9 NY3d 904 [2007]; People v Shulman, 6 NY3d 1, 28 [2005], cert denied 547US 1043 [2006]). We further note that the prospective juror also made two unqualifiedstatements that he could be fair and impartial (see People v Fowler-Graham, 124 AD3d 1403, 1403-1404 [4thDept 2015], lv denied 25 NY3d 1072 [2015]).
After several jurors had been sworn and seated, but before jury selection was completed, asworn juror indicated that he had failed to mention potentially relevant information when he wasquestioned prior to being sworn. We reject defendant's contention that the court erred in denyingdefense counsel's challenge for cause to the sworn juror "based upon a ground not known to thechallenging party" before the juror was sworn (CPL 270.15 [4]). Defendant waived his furthercontention that the court thereafter erred in granting defense counsel's peremptory challenge withrespect to that sworn juror inasmuch as defendant requested that the court perform the very actthat he now contends was error (see generally People v Richardson, 88 NY2d 1049, 1051[1996]; People v Rush, 148 AD3d1601, 1604 [4th Dept 2017], lv granted 29 NY3d 1133 [2017]).
Although we agree with defendant that the prosecutor engaged in misconduct by improperlyeliciting prejudicial testimony about defendant's nickname, "Diablo," for purposes other thanidentification from witnesses who knew defendant by his real name (see People v Tolliver, 93 AD3d1150, 1150-1151 [4th Dept 2012], lv denied 19 NY3d 968 [2012]), we conclude thatsuch conduct was not so egregious as to deny defendant a fair trial (see generally People vChatman, 281 AD2d 964, 966 [4th Dept 2001], lv denied 96 NY2d 899 [2001]). Theremaining instances of prosecutorial misconduct alleged by defendant are not preserved for ourreview (see CPL 470.05 [2]), and we decline to exercise our power to review them as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We also rejectdefendant's contention that defense counsel's failure to object to those alleged instances ofprosecutorial misconduct constitutes ineffective assistance of counsel (see generally People v Rickard, 26AD3d 800, 801 [4th Dept 2006], lv denied 7 NY3d 762 [2006]). We further rejectdefendant's contention that he was otherwise denied effective assistance of counsel. Defensecounsel, inter alia, vigorously cross-examined witnesses, made a specific and competent midtrialmotion for a trial order of dismissal, called several witnesses for the defense, and renewed themotion for a trial order of dismissal following the close of defendant's proof. Thus, we concludethat "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of thetime of the representation, reveal that [defense counsel] provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's further contention, we conclude that the court did not err in refusingto repeat the instruction on justification after providing the instruction for each count of theindictment. A court need not instruct justification seriatim where, as here, "the court's charge wasa correct statement of the law when viewed in its entirety . . . and adequatelyconveyed to the jury the correct principles of law to be applied to the case" (People v Bolling, 24 AD3d 1195,1197 [4th Dept 2005] [internal quotation marks omitted], affd 7 NY3d 874 [2006]). Wereject defendant's contention that the sentence is unduly harsh and severe.
Finally, we have reviewed defendant's remaining contention and conclude that it is withoutmerit. Present—Whalen, P.J., Centra, DeJoseph, NeMoyer and Winslow, JJ.