| People v Brooks |
| 2020 NY Slip Op 02560 [183 AD3d 1231] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bernard A. Brooks, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Erin A. Kulesus of counsel), fordefendant-appellant.
Bernard A. Brooks, Jr., defendant-appellant pro se.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedMarch 23, 2017. The judgment convicted defendant upon a jury verdict of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment that convicted him after a jurytrial of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We affirm.
Defendant failed to preserve his contention that, during jury deliberations, CountyCourt erred in failing to remove the jury foreperson as unavailable or grossly unqualifieddue to a possible scheduling conflict (see People v Sanderson, 68 AD3d 1716, 1717 [4th Dept2009], lv denied 14 NY3d 844 [2010]; see generally People v Payne, 68 AD3d 1800, 1800 [4thDept 2009], lv denied 14 NY3d 843 [2010], denied reconsideration 15NY3d 755 [2010]; People vClark, 28 AD3d 1190, 1190 [4th Dept 2006]). In any event, defendant'scontention lacks merit. The record does not establish that the foreperson was unavailablebecause of illness, incapacity, or any other reason (see CPL 270.35 [1]), the courtconducted the requisite "reasonably thorough inquiry" regarding the foreperson's possiblescheduling conflict with respect to the next day of scheduled deliberations (CPL 270.35[2] [a]; see People vNewton, 144 AD3d 1617, 1617 [4th Dept 2016], lv denied 28 NY3d1187 [2017]), and the foreperson informed the court that she wished to continuedeliberations. The record also does not establish that the foreperson was grosslyunqualified based on an alleged state of mind that would prevent her from rendering animpartial verdict (see People v Buford, 69 NY2d 290, 298 [1987]). The courtconducted a "probing and tactful inquiry" into the matter (People v Rodriguez, 71NY2d 214, 219 [1988] [internal quotation marks omitted]), and the foreperson stated thatshe would be "sad" if she could not be with her children for a scheduled medicalprocedure and that it would be "tough" if she had to postpone the procedure. Theforeperson did not indicate that she would be unable to focus on the deliberations or thather "sad" state of mind would prevent her from rendering an impartial verdict (cf. People v Spencer, 29 NY3d302, 311 [2017], rearg denied 31 NY3d 1074 [2018]).
Defendant also failed to preserve his contention that the court's response to the juryregarding the jury foreperson's scheduling conflict was coercive and implicitly urged thejury to rush its verdict (seePeople v Morales, 36 AD3d 631, 632 [2d Dept 2007], lv denied 8 NY3d925 [2007]; People v Robertson, 217 AD2d 989, 990-991 [4th Dept 1995], lvdenied 86 NY2d 846 [1995]). In any event, defendant's contention lacks meritinasmuch as the court's instructions to the jury did not attempt to compel, urge, or shamethe jury into reaching a verdict (see generally People v Anderson, 149 AD3d 1407, 1415[3d Dept 2017], lv denied 30 NY3d 947 [2017]). Rather, the instructions wereopen ended and encouraging (see People v Langevin, 164 AD3d 1597, 1597 [4th Dept2018], lv denied 32 NY3d 1174 [2019]; Morales, 36 AD3d at 632).
Defendant correctly concedes that he failed to preserve his contention that he wasdenied a fair trial due to the prosecutor's alleged misconduct on summation (see People v Laurent, 156AD3d 1489, 1489 [4th Dept 2017], lv denied 31 NY3d 985 [2018]; People v Wellsby, 30 AD3d1092, 1093 [4th Dept 2006], lv denied 7 NY3d 796 [2006]). In any event,the allegedly improper comments during the prosecutor's summation were "fairresponse[s] to defense counsel's summation" (People v McEathron, 86 AD3d 915, 916 [4th Dept 2011],lv denied 19 NY3d 975 [2012] [internal quotation marks omitted]).
Inasmuch as the prosecutor's comments on summation were not improper, defensecounsel's failure to object to them did not deprive defendant of effective assistance ofcounsel (see People vEckerd, 161 AD3d 1508, 1509 [4th Dept 2018], lv denied 31 NY3d1116 [2018]). To the extent that defendant contends that defense counsel was ineffectivefor mentioning uncharged crimes during the trial and on summation, defendant "failed todemonstrate that those alleged errors were not strategic in nature" (People v Henry, 74 AD3d1860, 1862 [4th Dept 2010], lv denied 15 NY3d 852 [2010]) and, in anyevent, "the evidence, the law, and the circumstances of [this] particular case, viewed intotality and as of the time of the representation, reveal that [his] attorney providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).
We conclude that the sentence is not unduly harsh or severe. We note that thecertificate of conviction incorrectly states that defendant was sentenced upon a guiltyplea, rather than upon a jury verdict, and does not reflect that defendant was sentenced asa second felony offender. The certificate of conviction must therefore be amended tocorrect those clerical errors (seePeople v Baldwin, 173 AD3d 1748, 1749-1750 [4th Dept 2019], lvdenied 34 NY3d 928 [2019]).
Finally, we have considered the contentions in defendant's pro se supplemental briefand conclude that they do not require reversal or modification of the judgment.Present—Whalen, P.J., Curran, Troutman, Winslow and Bannister,JJ.