| People v Richards |
| 2019 NY Slip Op 08031 [177 AD3d 1280] |
| November 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Daniel J. Richards, Appellant. |
D.J. & J.A. Cirando, PLLC, Syracuse (John A. Cirando of counsel), fordefendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston ofcounsel), for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered April 13, 2016. The judgment convicted defendant upon a jury verdict ofattemped arson in the second degree and aggravated harassment in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment that convicted him upon a juryverdict of, inter alia, attempted arson in the second degree (see Penal Law§§ 110.00, 150.15). Defendant failed to preserve for our review hiscontention that County Court erred in failing to discharge a sworn juror (see People v Dennis, 91 AD3d1277, 1279 [4th Dept 2012], lv denied 19 NY3d 995 [2012]; see generally People v Clark,28 AD3d 1190, 1190 [4th Dept 2006]). Contrary to defendant's further contention,viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legallysufficient to support the conviction (see People v Williams [James], 100 AD3d 1444, 1444 [4thDept 2012], lv denied 20 NY3d 1066 [2013]; see generally People vAdams, 222 AD2d 1124, 1124 [4th Dept 1995], lv denied 87 NY2d 1016[1996]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (seePeople v Bennett, 94 AD3d 1570, 1571-1572 [4th Dept 2012], lv denied19 NY3d 994 [2012], denied reconsideration 19 NY3d 1101 [2012]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
We also reject defendant's contention that he was denied effective assistance ofcounsel. Defendant's assertion that defense counsel was ineffective in failing to retain afire expert is unavailing because "defendant has not established that such experttestimony was available, that it would have assisted the jury in its determination or thathe was prejudiced by its absence" (People v Graham, 125 AD3d 1496, 1497 [4th Dept 2015],lv denied 26 NY3d 1008 [2015] [internal quotation marks omitted]). We likewisereject defendant's assertion that defense counsel was ineffective in waiving opening andclosing statements at the suppression hearing. The omnibus motion set forth a cogenttheory for suppression of the evidence, and defense counsel effectively cross-examinedthe People's witnesses at the hearing (see People v Harris, 147 AD3d 1354, 1356-1357 [4th Dept2017], lv denied 29 NY3d 1032 [2017]). Also contrary to defendant's contention,defense counsel was not ineffective in failing to object with respect to the alleged bias ofa sworn juror based on comments made by the court, after the People rested, in which thecourt acknowledged that it had known the juror personally. Defendant failed todemonstrate "the absence of strategic or other legitimate explanations for counsel'salleged shortcomings" (People vSwank, 109 AD3d 1089, 1090 [4th Dept 2013], lv denied 23 NY3d 968[2014] [internal quotation marks omitted]), particularly given that the record does notsupport defendant's allegation of juror bias. Defendant's further contention that trialcounsel was ineffective in failing to adequately explain to defendant his right to testify isbased primarily on matters outside the record and must be raised pursuant to a CPL440.10 motion (see generallyPeople v Streeter, 118 AD3d 1287, 1289 [4th Dept 2014], lv denied 23NY3d 1068 [2014], denied reconsideration 24 NY3d 1047 [2014]).
Defendant also contends that he was deprived of his right to testify at trial. Insofar asdefendant contends that the court had an obligation to ensure that he knowingly waivedhis right to testify, defendant's contention lacks merit. "The trial court has no obligationto inform a defendant of his or her right to testify or to ascertain if the failure to testifywas a voluntary and intelligent waiver of his or her right to do so" (People v Cosby, 82 AD3d63, 66 [4th Dept 2011], lv denied 16 NY3d 857 [2011]). In any event, therecord establishes that the court made an inquiry regarding defendant's decision not totestify and that defendant stated that the decision was his own. To the extent thatdefendant contends that conversations with defense counsel otherwise deprived him ofhis right to testify, that contention is, as with defendant's related ineffective assistanceclaim, based primarily on matters outside the record and must be raised pursuant to aCPL 440.10 motion (see generally Streeter, 118 AD3d at 1289).
Contrary to defendant's further contention, he was not deprived of a fair trial basedon the court's limited questioning of witnesses. A trial court " 'is entitled toquestion witnesses to clarify testimony and to facilitate the progress of the trial,' "and there is no indication in the record that the court was biased against defendant (People v Williams, 107 AD3d1516, 1517 [4th Dept 2013], lv denied 21 NY3d 1047 [2013], quotingPeople v Yut Wai Tom, 53 NY2d 44, 55 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Carni, NeMoyer, Troutman and Winslow, JJ.