| People v Williams |
| 2018 NY Slip Op 05091 [163 AD3d 1422] |
| July 6, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Isiah Williams, Appellant. (Appeal No. 3.) |
Isiah Williams, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Frederick G. Reed, A.J.),rendered December 4, 2015. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a forged instrument in the second degree (two counts), and scheme to defraud inthe second degree.
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 of twocounts of criminal possession of a forged instrument in the second degree (Penal Law§ 170.25) and one count of scheme to defraud in the second degree(§ 190.60). We reject the contention of defendant that he was denied a fair trialwhen Supreme Court allowed the People to present testimony regarding the facts underlyingcount seven of the indictment, which was previously dismissed by this Court (People v Williams, 101 AD3d1734, 1734 [4th Dept 2012]). That testimony was relevant to the crimes charged in counts 5and 15 of the indictment and was therefore properly admitted at trial (see generally People vDavis, 43 NY2d 17, 27 [1977], cert denied 435 US 998 [1978], reargdismissed 61 NY2d 670 [1983]; Jerome Prince, Richardson on Evidence§ 4-101 at 136 [Farrell 11th ed 1995]).
By failing to object to the court's jury instruction, defendant failed to preserve for our reviewhis contention that he was deprived of a fair trial by that instruction (see CPL 470.05 [2];see also People v Green, 35 AD3d1211, 1212 [4th Dept 2006], lv denied 8 NY3d 985 [2007]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject defendant's further contention that the grand jury proceeding was defective,requiring dismissal of the indictment (see CPL 210.35 [5]). Although one of thewitnesses provided false testimony at the grand jury proceeding relating to count four of theindictment, that count was properly dismissed. Further, "[t]here is no indication that the Peopleknowingly or deliberately presented false testimony before the Grand Jury, and thus there is nobasis for finding that the integrity of the Grand Jury proceeding[ ] was impaired or [that] the[remaining counts of the] indictment [were] rendered defective by the alleged false testimony"(People v Klosin, 281 AD2d 951, 951 [4th Dept 2001], lv denied 96 NY2d 864[2001]; see generally People v Huston, 88 NY2d 400, 406-407 [1996]; People v Miller, 110 AD3d 1150,1150-1151 [3d Dept 2013]).
Contrary to defendant's contention, the court did not err in denying his request for a missingwitness charge. "A request for a missing witness charge is properly denied where, as here, theparty requesting the charge does not establish that the witness could have been expected to testifyconcerning a material issue" (People vWilliams, 13 AD3d 1173, 1174 [4th Dept 2004], lv denied 4 NY3d 892[2005], denied upon reconsideration 5 NY3d 796 [2005]; see People v Morris,[*2]159 AD2d 934, 934 [4th Dept 1990], lv denied 76NY2d 793 [1990]).
Defendant failed to object to all but one of the allegedly improper remarks made by theprosecutor during opening and closing statements, and thus failed to preserve for our review hiscontention that he was denied a fair trial by those instances of alleged prosecutorial misconduct(see CPL 470.05 [2]; People vSimmons, 133 AD3d 1275, 1277 [4th Dept 2015], lv denied 27 NY3d 1006[2016]). In any event, defendant's contention is without merit inasmuch as all of the challengedremarks were either a fair comment on the evidence or a fair response to defendant's summation(see Simmons, 133 AD3d at 1277-1278; see People v Kelly, 34 AD3d 1341, 1342 [4th Dept 2006], lvdenied 8 NY3d 847 [2007]). Contrary to defendant's further contention, defense counsel'sfailure to object to the prosecutor's comments did not deprive defendant of effective assistance ofcounsel inasmuch as those comments did not constitute prosecutorial misconduct (see People v Hill, 82 AD3d 1715,1715 [4th Dept 2011], lv denied 17 NY3d 806 [2011]). With respect to defense counsel'sfailure to object to the testimony of a prosecution witness and to elicitation by the prosecutor oftestimony regarding defendant's nickname, "it is well settled that '[a] defendant is not deniedeffective assistance of trial counsel merely because counsel does not make a motion or argumentthat has little or no chance of success' " (People v Harris, 147 AD3d 1328, 1330 [4th Dept 2017]).
We also reject defendant's contention that the court erred in denying his request for substitutecounsel inasmuch as the court made the requisite "minimal inquiry" into defendant's objectionswith respect to defense counsel (People v Sides, 75 NY2d 822, 825 [1990]; see People v Blackwell, 129 AD3d1690, 1691 [4th Dept 2015], lv denied 26 NY3d 926 [2015]), and properlydetermined that "there was no basis for substitution of counsel or for further inquiry" (People v Zuniga, 149 AD3d 660,660 [1st Dept 2017], lv denied 29 NY3d 1136 [2017]; see People v Medina, 44NY2d 199, 206-210 [1978]). "Moreover, the timing and circumstances of defendant's [request]strongly suggest that it was a delaying tactic" (Zuniga, 149 AD3d at 660; seeMedina, 44 NY2d at 208).
Contrary to defendant's contention, we further conclude that he was properly adjudicated apersistent felony offender. Even assuming, arguendo, that the People failed to comply with CPL400.20, we conclude that "strict compliance with the statute was not required inasmuch asdefendant received reasonable notice of the accusations against him and was provided anopportunity to be heard with respect to those accusations during the persistent felony offenderproceeding" (People v Gonzalez, 61AD3d 1428, 1429 [4th Dept 2009], lv denied 12 NY3d 925 [2009]; see People v Mateo, 101 AD3d1458, 1461 [3d Dept 2012], lv denied 21 NY3d 913 [2013]; see generally Peoplev Bouyea, 64 NY2d 1140, 1142 [1985]). Additionally, the court did not err in admitting inevidence documents that contained his social security number because defendant placed hisidentity at issue during the persistent felony offender hearing (see generally People v Battease, 93 AD3d 888, 889 [3d Dept 2012],lv denied 18 NY3d 992 [2012]).
We also reject defendant's contention that the court abused its discretion in sentencing him asa persistent felony offender. We conclude "that [defendant's] history and character. . . and the nature and circumstances of his criminal conduct indicate that extendedincarceration and life-time supervision will best serve the public interest" (Penal Law§ 70.10 [2]; see People vMagin, 152 AD3d 1184, 1184 [4th Dept 2017], lv denied 30 NY3d 951 [2017];People v Lewis, 292 AD2d 814, 814-815 [4th Dept 2002], lv denied 98 NY2d677 [2002]).
Finally, we note that the certificate of conviction incorrectly states that defendant wasconvicted of count four of the indictment. Therefore, the certificate of conviction must beamended to reflect that count four of the indictment was dismissed (see generally People v Anderson, 79AD3d 1738, 1739 [4th Dept 2010], lv denied 16 NY3d 856 [2011]).Present—Centra, J.P., Carni, Lindley and Curran, JJ.