| People v Lowery |
| 2018 NY Slip Op 00748 [158 AD3d 1179] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JeffreyLowery, Appellant. |
Catherine H. Josh, Rochester, for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedSeptember 28, 2015. The judgment convicted defendant, upon a jury verdict, of failure to registeror verify as a sex offender.
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, offailure to register or verify as a sex offender (Correction Law § 168-f [3]).Defendant was sentenced, as a persistent felony offender (PFO), to an indeterminate term of 15years to life.
Defendant failed to preserve for our review his contention that he was deprived of a fair trialby prosecutorial misconduct during opening statements and on summation because he failed toobject to any of the alleged instances of misconduct (see People v Lewis, 140 AD3d 1593, 1595 [4th Dept 2016], lvdenied 28 NY3d 1029 [2016]). In any event, although we conclude on the merits thatdefendant was not deprived of a fair trial, we take this opportunity to voice our displeasure withthe conduct of the prosecutor. We are certain that the Livingston County District Attorney'sOffice is well aware that "a prosecutor serves as an officer of the court and a representative of thePeople of the State" (id.), and that prosecutors " 'play a distinctive role in thesearch for truth in criminal cases. As public officers they are charged not simply with seekingconvictions but also with ensuring that justice is done. This role gives rise to specialresponsibilities—constitutional, statutory, ethical, personal—to safeguard theintegrity of criminal proceedings and fairness in the criminal process' " (People v Flowers, 151 AD3d1843, 1845 [4th Dept 2017]). Here, the prosecutor's ill-advised decision to clap sarcasticallyduring summation as he was describing defendant's efforts to report a change of address isentirely inconsistent with the standards of conduct expected of prosecutors, and we thereforeadmonish the prosecutor for such conduct.
We reject defendant's contention that he was denied effective assistance of counsel. Withrespect to the failure to object to the alleged instances of prosecutorial misconduct, inasmuch asthey were not so egregious as to deprive defendant of a fair trial, defense counsel's failure toobject thereto did not deprive defendant of effective assistance of counsel (see People v Black, 137 AD3d1679, 1680-1681 [4th Dept 2016], lv denied 27 NY3d 1128 [2016], deniedreconsideration 28 NY3d 1026 [2016]).
We further reject defendant's contention that his waiver of immunity was ineffective and thusthat the grand jury proceedings were defective. CPL 190.45 (2) provides that "[a] waiver ofimmunity is not effective unless and until it is sworn to before the grand jury conducting theproceeding in which the subscriber has been called as a witness." CPL 190.40 (2) (a) providesthat a witness who gives evidence in a grand jury proceeding receives immunity unless, inrelevant part, the witness "has effectively waived such immunity pursuant to section 190.45."Here, defendant was administered an oath by the grand jury foreperson. After being sworn in,[*2]defendant acknowledged that he intended to testify before thegrand jury under a waiver of immunity, the waiver of immunity was explained to him by theassistant district attorney, defendant stated that his attorney had explained the waiver ofimmunity to him and he then signed the waiver in the presence of the grand jury. In our view, thestatutory requirements were met and the waiver was valid (see People v Edwards, 37 AD3d 289, 289 [1st Dept 2007], lvdenied 9 NY3d 843 [2007]; People v Young, 205 AD2d 908, 909-910 [3d Dept1994]). Furthermore, the fact that defense counsel notarized the waiver does not render counselineffective and does not render the waiver invalid (see generally Young, 205 AD2d at908).
Although we agree with defendant that County Court erred in counting defendant's priorfelony convictions of perjury in the first degree, criminal possession of stolen property in thesecond degree and assault in the first degree as separate felonies (see Penal Law§ 70.10 [1] [c]), defendant nevertheless had two qualifying prior felonies for PFOstatus. Contrary to defendant's contention, his 1977 rape conviction was properly used as both theregisterable offense and a predicate felony for PFO purposes and does not violate the prohibitionagainst double jeopardy. The Sex Offender Registration Act (SORA) "does not imposepunishment, but is a civil statute aimed at prevention of crime and protection of the public" (People v Szwalla, 61 AD3d 1289,1290 [3d Dept 2009]; see People vMiller, 77 AD3d 1386, 1387-1388 [4th Dept 2010], lv denied 16 NY3d 701[2011]). The violation of Correction Law § 168-f is itself a crime, distinct from theoriginal crime as having no shared elements, and sentencing as a PFO is "based solely on theexistence of two prior felony convictions" (People v Quinones, 12 NY3d 116, 128 [2009], cert denied558 US 821 [2009]). Defendant's rape conviction was the prerequisite to his adjudication as a sexoffender, and that adjudication is not considered a criminal punishment. The rape conviction isnot an element of his Correction Law crime, but his subsequent failure to verify his address underthe requirements of SORA is (see §§ 168-f, 168-t). Contrary todefendant's related contention, New York's PFO statute is constitutional on its face and asapplied in this case (see People vGiles, 24 NY3d 1066, 1068 [2014], cert denied 577 US &mdash, 136 S Ct 32[2015]; People v Battles, 16 NY3d54, 59 [2010], cert denied 565 US 828 [2011]; People v Cehfus, 140 AD3d 1644, 1645 [4th Dept 2016], lvdenied 28 NY3d 969 [2016]).
We further conclude that defendant's sentence is not unduly harsh or severe and that the courtproperly exercised its discretion in adjudicating defendant a PFO (see People v Boykins, 134 AD3d1542, 1543 [4th Dept 2015], lv denied 27 NY3d 1066 [2016]). "[D]efendant's'history and character . . . and the nature and circumstances of his criminal conductindicate that extended incarceration and life-time supervision will best serve the publicinterest' " (People v Prindle,129 AD3d 1506, 1507 [4th Dept 2015], affd 29 NY3d 463 [2017], certdenied 583 US &mdash, 138 S Ct 514 [2017]).
Finally, we reject defendant's related contention that his sentence was a result ofprosecutorial and/or institutional vindictiveness. "[T]he mere fact that a sentence imposed aftertrial is greater than that offered in connection with plea negotiations is not proof that defendantwas punished for asserting [his] right to trial . . . , and there is no indication in therecord before us that the sentencing court [or the prosecutor] acted in a vindictive manner basedon defendant's exercise of the right to a trial" (People v Garner, 136 AD3d 1374, 1374-1375 [4th Dept 2016],lv denied 27 NY3d 997 [2016] [internal quotation marks omitted]).Present—Peradotto, J.P., Carni, DeJoseph, Curran and Winslow, JJ.