| People v Gelling |
| 2018 NY Slip Op 05423 [163 AD3d 1489] |
| July 25, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Gelling, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
Joseph Gelling, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered June 19, 2012. The judgment convicted defendant, upon a jury verdict, of burglary inthe second degree, criminal possession of a weapon in the second degree, criminal mischief inthe fourth degree, petit larceny and criminal possession of stolen property in the fifth 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,inter alia, burglary in the second degree (Penal Law § 140.25 [2]) and criminalpossession of a weapon in the second degree (§ 265.03 [3]). Addressing firstdefendant's contentions in his main brief, we conclude that defendant was not denied effectiveassistance of counsel. Defendant contends that defense counsel was ineffective in failing to callan expert to testify regarding the potency of the alcoholic beverage that defendant admitted todrinking on the night of the incident in support of an intoxication defense. That contention lacksmerit. " 'Defendant has not demonstrated that such testimony was available, that it wouldhave assisted the jury in its determination or that he was prejudiced by its absence' "(People v Jurgensen, 288 AD2d 937, 938 [4th Dept 2001], lv denied 97 NY2d684 [2001]). Contrary to defendant's contention, expert testimony was not required to establishan intoxication defense, and "defendant now offers little more than speculative assertions that anexpert's testimony would have supported it" (People v Muller, 57 AD3d 1113, 1114 [3d Dept 2008], lvdenied 12 NY3d 761 [2009]; seePeople v King, 124 AD3d 1064, 1067 [3d Dept 2015], lv denied 25 NY3d 1073[2015]).
Defendant further contends that defense counsel was ineffective in failing to establish themeaning of a notation regarding his blood alcohol content that was apparently placed on a jailform when he was booked into the jail inasmuch as that information would have supported hisintoxication defense. We reject that contention. It is well settled that, in order to establish thatcounsel was ineffective, defendant must " 'demonstrate the absence of strategic or otherlegitimate explanations' for defense counsel's allegedly deficient conduct" (People v Bank, 129 AD3d 1445,1447 [4th Dept 2015], affd 28 NY3d 131 [2016], quoting People v Rivera, 71NY2d 705, 709 [1988]; see People v Benevento, 91 NY2d 708, 712 [1998]; People v Anwar, 151 AD3d 1628,1629 [4th Dept 2017], lv denied 30 NY3d 947 [2017]). There is no evidencedemonstrating that the notation indicated that defendant was intoxicated, and indeed it could beinterpreted to indicate that he was sober enough to legally operate a motor vehicle. Consequently,we will not "second-guess whether [the] course chosen by defendant's counsel was the best trialstrategy, or even a good one, so long as defendant was afforded meaningful representation"(People v Satterfield, 66 NY2d 796, 799-800 [1985]). Here, "the evidence, the law, andthe circumstances of [the] case, viewed in totality and as of the time of the [*2]representation, reveal that [defendant's] attorney providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]; seeSatterfield, 66 NY2d at 798-799).
Defendant's contention, that he was deprived of effective assistance of counsel regarding hisdecision to reject a pretrial plea offer, "involves strategic discussions between defendant and hisattorney outside the record on appeal, and it must therefore be raised by way of a motion pursuantto CPL 440.10" (People v Manning,151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; see People v Surowka, 103 AD3d985, 986-987 [3d Dept 2013]).
Defendant's further contention that Supreme Court committed a mode of proceedings errorwhen it permitted the weapon that had been received in evidence to be provided to the jurors inresponse to a jury note without notifying counsel of that request lacks merit. In its charge, thecourt instructed the jury that they could request that certain exhibits, including the rifle andammunition, be provided to them, and defense counsel did not object to that charge or requestany supplemental instruction regarding the rifle or ammunition (see CPL 310.20 [1]).Therefore, when the jury sent a note requesting the rifle, it was not error for the court to providethat exhibit to them without further input from the parties (see People v Damiano, 87NY2d 477, 487 [1996], superceded by statute on other grounds as stated in People vMiller, 18 NY3d 704, 706 [2012];People v Black, 38 AD3d 1283, 1285-1286 [4th Dept 2007], lv denied 8 NY3d982 [2007]). To the contrary, the jury's request "was nothing more than an inquiry of a ministerialnature . . . , unrelated to the substance of the verdict . . . As a result, thejudge was not required to notify defense counsel nor provide them with an opportunity torespond, as neither defense counsel nor defendant could have provided a meaningfulcontribution" (People v Ochoa, 14NY3d 180, 188 [2010]).
We reject defendant's contention that the court erred in denying his motion to dismiss theindictment pursuant to CPL 210.35 (4) on the ground that the People failed to provide him withreasonable notice of the grand jury proceedings pursuant to CPL 190.50 (5) (a). "CPL 190.50 (5)(a) does not mandate a specific time period for notice; rather, 'reasonable time' must be accordedto allow a defendant an opportunity to consult with [defense] counsel and decide whether totestify before a [g]rand [j]ury" (People v Sawyer, 96 NY2d 815, 816 [2001]). Here, therecord establishes that the People gave defendant and his attorney 1
We also reject defendant's contention that he was denied the right to be present at a sidebarconference during the jury selection process. It is well settled that "reversal is not required[where, as here], because of the matter then at issue before the court or the practical result of thedetermination of that matter, the defendant's presence could not have afforded him or her anymeaningful opportunity to affect the outcome" (People v Roman, 88 NY2d 18, 26 [1996],rearg denied 88 NY2d 920 [1996]; see generally People v Gamble, 137 AD3d 1053, 1055 [2d Dept2016]).
We reject defendant's contention that the verdict is contrary to the weight of the evidenceinasmuch as his intoxication prevented him from forming the requisite intent to commit certaincrimes of which he was convicted, and from knowingly possessing the weapon. Upon reviewingthe evidence "in light of the elements of the crime[s] as charged [to the jury] without objection bydefendant" (People v Noble, 86 NY2d 814, 815 [1995]; see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence.
Penal Law § 15.25 states that "[i]ntoxication is not, as such, a defense to acriminal charge; but in any prosecution for an offense, evidence of intoxication of the defendantmay be offered by the defendant whenever it is relevant to negative an element of the crimecharged." Although there was evidence in this case that defendant consumed alcohol, and thusthe jury could have concluded that he was intoxicated, "it is well settled that '[a]n intoxicatedperson can [*3]form the requisite criminal intent to commit acrime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate theelement[s] of intent' " and knowledge (People v Williams, 158 AD3d 1170, 1171 [4th Dept 2018], lvdenied 31 NY3d 1018 [2018]; seePeople v Principio, 107 AD3d 1572, 1573 [4th Dept 2013], lv denied 22 NY3d1090 [2014]). Furthermore, it is also well settled that " '[a] defendant may be presumedto intend the natural and probable consequences of his [or her] actions . . . , and[i]ntent may be inferred from the totality of conduct of the accused' " (People v Meacham, 151 AD3d1666, 1668 [4th Dept 2017], lv denied 30 NY3d 981 [2017]; see Williams,158 AD3d at 1170).
In addition, with respect to the burglary charge, "[a] defendant's intent to commit a crimemay be inferred from the circumstances of the entry . . . , as well as from defendant'sactions and assertions when confronted" (People v Maier, 140 AD3d 1603, 1603-1604 [4th Dept 2016],lv denied 28 NY3d 933 [2016] [internal quotation marks omitted]; see People vGaines, 74 NY2d 358, 362 n 1 [1989]; People v Ramirez, 278 AD2d 897, 897 [4thDept 2000], lv denied 96 NY2d 833 [2001]). Here, the evidence established thatdefendant armed himself with a loaded weapon, made several attempts to enter the dwelling atissue by cutting screens and attempting to force open a door, eventually entered through asecond-story window, took property and threw it out of the window to a spot where it could beretrieved and loaded into a waiting vehicle, and immediately fled when confronted by thehomeowner. Based on that evidence and all the other evidence in the record, we rejectdefendant's contention that the evidence of his intoxication negated the elements of intent andknowledge for the crimes of which he was convicted (see People v Madore, 145 AD3d 1440, 1440 [4th Dept 2016], lvdenied 29 NY3d 1034 [2017]; People v Jackson, 269 AD2d 867, 867 [4th Dept2000], lv denied 95 NY2d 798 [2000]).
Contrary to defendant's further contention, the integrity of the grand jury proceedings was notimpaired by the prosecutor's failure to instruct the grand jurors on intoxication. The People werenot required to give an intoxication charge to the grand jury because there was insufficientevidence of intoxication presented in that forum, and the People were also not required to presentevidence of any mitigating defense (see People v Lancaster, 69 NY2d 20, 30 [1986],cert denied 480 US 922 [1987]; People v Walton, 70 AD3d 871, 874 [2d Dept 2010], lvdenied 14 NY3d 894 [2010]) and, "[l]ike a mitigating defense, intoxication merely reducesthe gravity of the offense by negating an element" (People v Harris, 98 NY2d 452, 475[2002]). "The People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury. . . and are not obligated to search for evidence favorable to the defense or topresent all evidence in their possession that is favorable to the accused" (Lancaster, 69NY2d at 25-26). Although the prosecutor has a duty to instruct the grand jury regarding anycomplete defense, "the prosecutor's obligation to instruct the [g]rand [j]ury on a particulardefense depends upon whether that defense has the 'potential for eliminating a needless orunfounded prosecution' " (id. at 27, quoting People v Valles, 62 NY2d 36,38 [1984]). Here, we conclude that "[t]he People here were not required to instruct the grand juryon intoxication" (Harris, 98 NY2d at 475).
The sentence is not unduly harsh or severe. We have considered defendant's remainingcontentions in his main brief and the contentions in his pro se supplemental brief, and weconclude that none warrants reversal or modification of the judgment. Present—Whalen,P.J., Smith, Carni, NeMoyer and Troutman, JJ.