| People v Reed |
| 2018 NY Slip Op 05101 [163 AD3d 1446] |
| July 6, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v William Reed, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen N. McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June29, 2015. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree, grand larceny in the third degree and criminal mischief in the fourth 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 ofburglary in the second degree (Penal Law § 140.25 [2]), grand larceny in the thirddegree (§ 155.35 [1]), and criminal mischief in the fourth degree(§ 145.00 [1]), arising from an incident in which a home was burglarized while thehomeowner was at work. The perpetrator broke through two sets of glass doors to gain entry intothe dwelling and stole, among other items, jewelry valued in excess of $18,000 from the masterbedroom. A blood-stained sweater was discovered on the floor in the master bedroom, and theblood was subsequently linked to defendant through DNA testing.
Defendant contends that County Court erred in denying his motion to dismiss the indictmenton speedy trial grounds. Where, as here, a defendant seeks dismissal of the indictment based onthe statutory right to a speedy trial and the People respond by identifying periods of time thatshould be excluded from the speedy trial calculation, the defendant " 'preserveschallenges to the People's reliance on those exclusions for appellate review by identifying anylegal or factual impediments to the use of those exclusions' " (People v Allard, 28 NY3d 41, 45[2016], quoting People v Goode, 87 NY2d 1045, 1047 [1996]). In response to defendant'smotion, the People alleged, inter alia, that defendant had requested an adjournment during aproceeding on November 4, 2013, and, at an evidentiary hearing, they presented testimony insupport of that allegation. At the evidentiary hearing, defendant did not contend, as he does onappeal, that the transcript of the November 4, 2013 proceeding does not support the court'sdetermination that he had requested or consented to the adjournment on that date. Thus,defendant failed to preserve that contention for our review (see People v Brown, 82 AD3d 1698, 1699 [4th Dept 2011], lvdenied 17 NY3d 792 [2011]; People v Elijah, 272 AD2d 273, 273 [1st Dept 2000],lv denied 95 NY2d 865 [2000]; see generally Allard, 28 NY3d at 46-47), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
Defendant further contends that he was deprived of a fair trial by three instances of allegedmisconduct by the prosecutor on summation. Defendant correctly concedes, however, that he didnot object to any of those alleged instances of prosecutorial misconduct, and thus he failed topreserve his contention for our review (see People v Lowery, 158 AD3d 1179, 1179 [4th Dept 2018]; People v Lewis, 140 AD3d 1593,1595 [4th Dept 2016], lv denied 28 NY3d 1029 [2016]). We decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
[*2] Defendant contends that hewas deprived of effective assistance of counsel because of numerous alleged errors by defensecounsel. We reject defendant's contention that defense counsel was ineffective for failing toobject to the alleged prosecutorial misconduct on summation. The prosecutor was entitled "tocomment upon every pertinent matter of fact bearing upon the questions the jury [had] to decide"(People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation marks omitted]; seegenerally People v Galloway, 54 NY2d 396, 399 [1981]). In any event, even assuming,arguendo, that the prosecutor's comments were improper, we conclude that the allegedmisconduct was not so egregious as to deny defendant a fair trial (see People v Ielfield, 132 AD3d1298, 1299 [4th Dept 2015], lv denied 27 NY3d 1152 [2016]; People v Hunter, 115 AD3d 1330,1331 [4th Dept 2014], lv denied 23 NY3d 1038 [2014]). Defense counsel was thereforenot ineffective for failing to object to the alleged instances of prosecutorial misconduct (seeLowery, 158 AD3d at 1180; Peoplev Black, 137 AD3d 1679, 1681 [4th Dept 2016], lv denied 27 NY3d 1128[2016], denied reconsideration 28 NY3d 1026 [2016]).
We have considered defendant's remaining claims of ineffective assistance of counsel, andwe conclude that he failed to meet his burden of demonstrating "the absence of strategic or otherlegitimate explanations" for defense counsel's allegedly deficient conduct (People vRivera, 71 NY2d 705, 709 [1988]; see People v Carver, 27 NY3d 418, 421 [2016]). Viewing theevidence, the law, and the circumstances of this case in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see People vJackson, 66 AD3d 1415, 1416 [4th Dept 2009]; see generally People v Bleakley,69 NY2d 490, 495 [1987]). The jury was entitled to infer that defendant had the requisite intentto commit burglary, larceny, and criminal mischief from the evidence that he broke doors to gainentry into the victim's home and removed valuables therefrom without the permission of theowner (see People v Melendez, 24AD3d 1223, 1223 [4th Dept 2005], affd 8 NY3d 886 [2007]; see generally People v Frumusa, 134AD3d 1503, 1504 [4th Dept 2015], affd 29 NY3d 364 [2017], rearg denied29 NY3d 1110 [2017]). We note that resolution of issues of credibility and the weight to beaccorded to the evidence are primarily questions to be determined by the jury (see People v Abon, 132 AD3d1235, 1236 [4th Dept 2015], lv denied 27 NY3d 1127 [2016]), and we perceive nobasis for disturbing the jury's determinations in this case.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra,Lindley, Curran and Winslow, JJ.