| People v Tetro |
| 2019 NY Slip Op 06886 [175 AD3d 1784] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Morgan Tetro, Also Known as Morgan Burnell,Appellant. |
Jarrod W. Smith, Esq., P.L.L.C., Jordan (Jarrod W. Smith of counsel), fordefendant-appellant.
Letitia James, Attorney General, Albany (Lisa E. Fleischmann of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedNovember 16, 2015. The judgment convicted defendant, upon a jury verdict, of grand larceny inthe second degree, welfare fraud in the fourth degree, grand larceny in the third degree, offering afalse instrument for filing in the first degree (two counts) and criminal tax fraud in the fourthdegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from allegations that defendant and hercodefendant took advantage of an elderly woman—whom they had befriended andprovided with care—by liquidating her assets and appropriating her funds for their ownuse, defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, grandlarceny in the second degree (Penal Law § 155.40 [1]). We affirm.
Defendant contends that the grand jury proceeding was defective pursuant to CPL 210.35 (5)and that County Court therefore erred in refusing to dismiss the indictment (see generallyCPL 210.20 [1] [c]). We conclude upon our review of the grand jury minutes that defendant'scontention lacks merit (see People v Gonzales, 145 AD3d 1432, 1432 [4th Dept 2016],lv denied 29 NY3d 1079 [2017]; see generally People v Huston, 88 NY2d 400,409 [1996]).
Contrary to defendant's further contention, although the court erred in arraigning her andinitially setting bail in the absence of counsel, we conclude that reversal is not required inasmuchas the record establishes that defendant's nonrepresentation at that critical stage of theprosecution had no impact on the ultimate adjudication (see People v Kaetzel, 117 AD3d1187, 1188-1189 [3d Dept 2014], lv denied 24 NY3d 962 [2014]; People vYoung, 35 AD3d 958, 960 [3d Dept 2006], lv denied 8 NY3d 929 [2007]; seealso People v Green, 48 AD3d 1056, 1057 [4th Dept 2008], lv denied 10 NY3d 934[2008]; see generally Hurrell-Harring v State of New York, 15 NY3d 8, 21 [2010]). Tothe extent that defendant, after initially being assigned counsel following arraignment, wasthereafter unrepresented for a period pending a further determination of her eligibility forassigned counsel, we likewise conclude that reversal is not required on that ground. Evenassuming, arguendo, that such period constituted a critical stage of the prosecution, the lack ofrepresentation had no impact on the case as a whole, and defendant's unsupported and speculativeassertion to the contrary is insufficient to warrant reversal (see Kaetzel, 117 AD3d at1188-1189; Young, 35 AD3d at 960). Defendant also contends that, in light of the factthat several of the People's witnesses were local attorneys, the court should have assigned hercounsel from outside the county. Defendant failed to preserve that contention for our review(see People v Alexander, 132 AD3d 1412, 1413 [4th Dept 2015], lv denied 27NY3d 1148 [2016]; see generally CPL 470.05 [2]), and we decline to exercise our powerto review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Tothe extent that defendant contends that defense counsel was ineffective based on conflicts ofinterest, that contention concerns matters outside the record and must be raised by way of amotion pursuant to CPL article 440 (see People v Maltese, 148 AD3d 1780, 1783 [4thDept 2017], lv denied 29 NY3d 1093 [2017]).
We reject defendant's contention that she was denied meaningful representation. Contrary todefendant's assertion, the record establishes that defense counsel, among other things, madeappropriate pretrial motions, effectively cross-examined the People's witnesses in conjunctionwith the codefendant's attorney, lodged appropriate objections, introduced evidence in favor ofdefendant, and made compelling opening and closing statements, thereby mounting a cogent,albeit unsuccessful, defense premised largely upon the argument that the victim had knowinglyapproved of the financial dealings as acts of generosity toward defendant and the codefendantbased on the victim's close relationship with them (see People v Crumpler, 163 AD3d1457, 1459 [4th Dept 2018], lv denied 32 NY3d 1003 [2018], deniedreconsideration 32 NY3d 1125 [2018]; see generally People v Baldi, 54 NY2d 137,147 [1981]). Defendant also contends that she was denied meaningful representation by defensecounsel's decision not to seek severance of her trial from that of the codefendant. That contentionlacks merit inasmuch as such a motion would have had little or no chance of success and,moreover, defendant has not shown the absence of strategic or other legitimate explanations forthe absence of a severance motion (see People v McGee, 20 NY3d 513, 520 [2013];People v Evans, 142 AD3d 1291, 1292 [4th Dept 2016], lv denied 28 NY3d 1144[2017]). To the extent that defendant's contention that she was denied meaningful representationis based upon defense counsel's alleged failure to consult experts in preparation of the defense, itinvolves matters outside the record on appeal and must therefore be raised by way of a motionpursuant to CPL article 440 (see People v Washington, 122 AD3d 1406, 1406 [4th Dept2014], lv denied 25 NY3d 1173 [2015]). To the extent that defendant's contention isbased on defense counsel's failure to produce expert witnesses at trial to rebut the evidenceintroduced by the People, we conclude that defendant "has not established that such experttestimony was available, that it would have assisted the jury in its determination or that [she] wasprejudiced by its absence" (People v Woolson, 122 AD3d 1353, 1354 [4th Dept 2014],lv denied 25 NY3d 1078 [2015] [internal quotation marks omitted]).
Defendant further contends that the court erred in admitting the testimony of an expertwitness for the People because the court did not qualify the witness as an expert. That contentionlacks merit inasmuch as the court overruled the objection by defense counsel made on thatground, thereby "implicitly indicat[ing] the court's discretionary acceptance of [the witness's]opinion as 'expert testimony' in [her] applicable field" (People v Gordon, 202 AD2d 166,167 [1st Dept 1994], lv denied 83 NY2d 911 [1994]; see People v Benjamin R.,103 AD2d 663, 669 [4th Dept 1984]). Furthermore, the court "was not required to declare orcertify on the record that the witness was an expert before permitting [her] to testify" (Peoplev Valentine, 48 AD3d 1268, 1269 [4th Dept 2008], lv denied 10 NY3d 871[2008]).
Defendant also contends that the court committed reversible error by depriving her of theconstitutional right to counsel when it initially prohibited her from communicating with anyoneabout her testimony during a weekend recess while she was in the midst of testifying in herdefense. Defendant failed to preserve that contention for our review inasmuch as defense counselwas " 'present and available to register a protest' to [the] restriction on communicationthat would [have] provide[d] the court with an opportunity to rectify its error," but failed to do so(People v Umali, 10 NY3d 417, 423 [2008], rearg denied 11 NY3d 744 [2008],cert denied 556 US 1110 [2009]; see People v Narayan, 54 NY2d 106, 112[1981]; People v Brown, 169 AD3d1258, 1260 [3d Dept 2019], lv denied 33 NY3d 1029 [2019]). In any event, althoughthe court erred in initially issuing a restriction on communication that prohibited defendant fromdiscussing her testimony with defense counsel during the weekend recess (see People vJoseph, 84 NY2d 995, 996 [1994]), reversal is not required under the circumstances of thiscase. The record establishes that the court rescinded the restriction later the same day uponrealizing that it was improper; that defendant and defense counsel thereafter were able to consult,albeit not in person, over the weekend; that the court provided defendant and defense counsel asmuch time as they deemed necessary to further consult before the trial resumed after theweekend; and that they did so (see Umali, 10 NY3d at 423-424). In view of theforegoing, we conclude that defense counsel's failure to object to the initial restriction was not so"egregious and prejudicial as to compromise . . . defendant's right to a fair trial"(People v Caban, 5 NY3d 143, 152 [2005]; see People v Stewart, 68 AD3d 1438,1440 [3d Dept 2009], lv denied 14 NY3d 773 [2010]).
We reject defendant's contention that reversal is required based on the alleged loss of certaintrial exhibits. Even assuming, arguendo, that the exhibits have " 'substantial importance'to the issues in the case," we conclude that meaningful appellate review is not precludedinasmuch as "the information in the missing exhibit[s] can be gleaned from the record and thereis no dispute as to [the] accuracy" of that information (People v Yavru-Sakuk, 98 NY2d56, 60 [2002]; see People v Jackson, 11 AD3d 928, 930 [4th Dept 2004], lv denied3 NY3d 757 [2004]).
Contrary to defendant's additional contention, viewing the evidence in light of the elementsof the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]),we conclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The jury was entitled to credit the testimony of thePeople's witnesses, including that of the victim, over the testimony of defendant's witnesses,including that of defendant herself, and we perceive no reason to disturb those credibilitydeterminations (see People v Christopher, 64 AD3d 1006, 1006-1007 [3d Dept 2009],lv denied 13 NY3d 795 [2009]; People v Massaro, 32 AD3d 1223, 1223 [4thDept 2006]; People v Gustke, 201 AD2d 923, 923-924 [4th Dept 1994], lv denied83 NY2d 911 [1994]).
Finally, defendant's sentence, as reduced by operation of law to an aggregate indeterminateterm of 7