| People v Grant |
| 2018 NY Slip Op 02951 [160 AD3d 1406] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Shawn T. Grant, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered July 20, 2010. The judgment convicted defendant, upon a jury verdict, of arson in thefirst degree and arson in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of arson in the first degree (Penal Law § 150.20 [1]) and arson in thesecond degree (§ 150.15). In appeal No. 2, defendant appeals from an order denyinghis pro se motion seeking to vacate the judgment in appeal No. 1 pursuant to CPL 440.10 and, inappeal No. 3, defendant appeals from an order denying a similar motion pursuant to CPL 440.10made by defense counsel. We note at the outset that we dismiss the appeal from the order inappeal No. 2 because defendant raises no contentions with respect thereto (see People v Scholz, 125 AD3d1492, 1492 [4th Dept 2015], lv denied 25 NY3d 1077 [2015]).
With respect to appeal No. 1, defendant failed to preserve for our review his contention thathe was denied a fair trial as a result of prosecutorial misconduct (see People v Balenger, 70 AD3d1318, 1318 [4th Dept 2010], lv denied 14 NY3d 885 [2010]). In any event, thatcontention lacks merit inasmuch as any improper comments made by the prosecutor onsummation were isolated and not so egregious that defendant was deprived of a fair trial (see generally People v Romero, 7NY3d 911, 912 [2006]). Contrary to defendant's further contention, "neither defensecounsel's failure to object to the alleged instances of prosecutorial misconduct nor any of defensecounsel's other alleged shortcomings constituted ineffective assistance of counsel"(Balenger, 70 AD3d at 1318). Rather, " 'the evidence, the law, and thecircumstances of [this] particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation' " (People vBenevento, 91 NY2d 708, 712 [1998]). Defendant further contends that Supreme Court erredin permitting, over his objection, the presence of uniformed firefighters in the courtroom on thefirst day of trial. Inasmuch as the record fails to establish the number of uniformed firefighterspresent on that day, there is no basis for us to conclude that defendant was denied his right to afair trial by the court's ruling or that the court abused its discretion in determining that no curativeaction was warranted (see generallyPeople v Nguyen, 156 AD3d 1461, 1462 [4th Dept 2017]). We reject defendant'scontention that the sentence is unduly harsh and severe. We have considered defendant'sremaining contentions in appeal No. 1 and conclude that none warrants reversal or modificationof the judgment.
With respect to appeal No. 3, defendant contends that the court erred in summarily denyingthat part of his CPL 440.10 motion to vacate the judgment insofar as he was convicted of arsonin the second degree. We agree. The motion was based on the affidavit of a prosecution witnesswho recanted her trial testimony that defendant admitted to her that he started a certain housefire. That testimony formed the basis for defendant's conviction of arson in the second degree.Notably, the witness averred that, "Before the trial[,] the police investigator told me if I testifiedon [defendant's] behalf they would take my daughter away. I am still concerned about this." ThePeople did not submit an opposing affidavit from any of the police officers involved in the case.The court denied the motion without a hearing upon finding that the witness's recantation wasunreliable.
We conclude based on the totality of the circumstances that the court erred in denying thatpart of the motion with respect to the conviction of arson in the second degree without firstholding a hearing (see People vJenkins, 84 AD3d 1403, 1407 [2d Dept 2011], lv denied 19 NY3d 1026 [2012];see generally People v Martinez,126 AD3d 1350, 1351 [4th Dept 2015]). The witness's "trial testimony, if false, wasextremely prejudicial to defendant inasmuch as, without that testimony, there would have beenno basis for the jury to convict defendant" for setting the fire at issue in the arson in the seconddegree count (Martinez, 126 AD3d at 1351; see generally People v Lane, 100 AD3d 1540, 1541 [4th Dept2012], lv denied 20 NY3d 1063 [2013]). We therefore reverse the order in appeal No. 3insofar as appealed from, vacate that part of the order denying the motion with respect to theconviction of arson in the second degree and remit the matter to Supreme Court to conduct ahearing pursuant to CPL 440.30 (5) on that part of the motion. Present—Centra, J.P.,Carni, NeMoyer, Curran and Winslow, JJ.