| People v Burke |
| 2021 NY Slip Op 04857 [197 AD3d 967] |
| August 26, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Milton Burke, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Donald R. Gerace of counsel), fordefendant-appellant.
Milton Burke, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Jessica N. Carbone of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), renderedFebruary 28, 2019. The judgment convicted defendant upon a jury verdict of attempted assault inthe first degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]), andcriminal possession of a weapon in the second degree (§ 265.03 [3]). Weaffirm.
Addressing first defendant's contentions in his main brief, we reject his contention thatCounty Court erred in granting the People's motion to amend the bill of particulars to list one ofthe precise locations where defendant allegedly possessed a firearm. Because "the amendmentwas made by the People prior to jury selection[,] [it] was . . . statutorily permissible"(People v Wright, 13 AD3d803, 804 [3d Dept 2004], lv denied 4 NY3d 857 [2005]; see CPL 1.20 [11];200.95 [8]). Additionally, inasmuch as the amendment merely narrowed the description of thelocation where the crime occurred, it did not expand or alter the People's theory of the case, causedefendant undue prejudice, or demonstrate that the People acted in bad faith by seeking theamendment (see Wright, 13 AD3d at 804; People v Lewis, 277 AD2d 1010, 1011[4th Dept 2000], lv denied 96 NY2d 736 [2001]).
Defendant's contention that the court's ruling precluding him from eliciting certain testimonyfrom one of his own witnesses violated his constitutional right to confrontation is unpreservedfor our review because defendant did not object on that basis at trial (see People v Liner, 9 NY3d 856,856-857 [2007], rearg denied 9 NY3d 941 [2007]; People v Garcia, 2 AD3d 321, 322 [1st Dept 2003], lvdenied 2 NY3d 740 [2004]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). To the extentthat defendant contends that the court erred in precluding him from eliciting that testimony on thebasis of hearsay, we conclude that the record is inadequate to permit appellate review of thatcontention (see generally People vDye, 78 AD3d 1607, 1608 [4th Dept 2010], lv denied 16 NY3d 743 [2011];People v Belair, 226 AD2d 1105, 1106 [4th Dept 1996]).
We reject defendant's contention that he was deprived of a fair trial because the prosecutorimproperly acted as an unsworn witness on summation when he described the characteristics ofand sound made by a .45 caliber firearm inasmuch as that isolated comment was not so egregiousas to deny defendant a fair trial, especially given the instruction to the jury that an attorney'ssummation is not evidence (see generally People v Ashwal, 39 NY2d 105, 109-111[1976]; People v Warmley, 179AD3d 1537, 1538 [4th Dept 2020], lv denied 35 NY3d [*2]945 [2020]; People v Fick, 167 AD3d 1484, 1485-1486 [4th Dept 2018], lvdenied 33 NY3d 948 [2019]).
By objecting to the People's request, defendant preserved his contention challenging thecourt's decision to give the jury a missing witness instruction with respect to an alibi witnessmentioned by defendant during his trial testimony (see CPL 470.05 [2]; People v Medina, 18 NY3d 98,104 [2011]). We nevertheless reject defendant's contention because "the People established thatthe [alibi witness] would have provided testimony on a material issue in the case and would havetestified favorably for defendant" (People v Carey, 162 AD3d 1476, 1477 [4th Dept 2018], lvdenied 32 NY3d 936 [2018]; see People v Soto, 297 AD2d 567, 567 [1st Dept 2002],lv denied 99 NY2d 564 [2002]).
To the extent that defendant argues that the court erred in denying his motion for a trial orderof dismissal, we conclude that, viewing "the evidence in the light most favorable to the People,"there is a valid line of reasoning that could lead a rational person to the conclusion reached by thejury (People v Bay, 67 NY2d 787, 788 [1986]; see also People v Mansilla, 143 AD3d 1263, 1263 [4th Dept 2016],lv denied 29 NY3d 950 [2017]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we also reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Although defendant contends that he was deprived of his constitutional right to a speedy trial,we note that "defendant moved to dismiss the indictment on statutory speedy trial grounds onlyand thus failed to preserve for our review his present contention that he was denied hisconstitutional right to a speedy trial" (People v Walter, 138 AD3d 1479, 1479-1480 [4th Dept 2016],lv denied 27 NY3d 1141 [2016] [internal quotation marks omitted]; see People v Schillawski, 124 AD3d1372, 1373 [4th Dept 2015], lv denied 25 NY3d 1207 [2015]; People vWeeks, 272 AD2d 983, 983 [4th Dept 2000], lv denied 95 NY2d 872 [2000]), andwe decline to exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We also reject defendant's contention that defense counsel wasineffective in failing to make that argument in the motion to dismiss because it had little or nochance of success (see People vBrinson, 151 AD3d 1726, 1726 [4th Dept 2017], lv denied 29 NY3d 1124[2017]; People v Sweet, 98 AD3d1252, 1253 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see generally People v Caban, 5 NY3d143, 152 [2005]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
We also reject defendant's contention in his main and pro se supplemental briefs that he wasotherwise denied effective assistance of counsel. Defendant's contention with respect to defensecounsel's failure to secure the testimony of an alibi witness involves matters outside the recordand must be raised in a CPL 440.10 motion (see e.g. People v Barksdale, 191 AD3d 1370, 1371 [4th Dept2021], lv denied 36 NY3d 1118 [2021]; People v Meyers, 188 AD3d 1732, 1734 [4th Dept 2020]; People v Scott, 181 AD3d 1220,1220 [4th Dept 2020]). Contrary to defendant's contention, we conclude that defense counsel wasnot ineffective in failing to provide defendant with notice of his right to testify before the grandjury or to have him testify before the grand jury. The record belies defendant's contention that hedid not receive notice of the grand jury proceedings. Additionally, with respect to defendant'sargument that defense counsel was ineffective for not facilitating defendant's testimony beforethe grand jury, defendant did not establish that he was prejudiced by that purported failure or thatthe outcome would have been different if he had testified (see People v Lostumbo, 182 AD3d 1007, 1009 [4th Dept 2020],lv denied 35 NY3d 1046 [2020];People v Robinson, 151 AD3d 1701, 1701 [4th Dept 2017], lv denied 29 NY3d1133 [2017]). Indeed, we note that defendant did testify at trial and was nonetheless found guilty(see People v Hogan, 26 NY3d779, 787 [2016]).
Finally, we have reviewed defendant's remaining contention and conclude that it does notwarrant modification or reversal of the judgment. Present—Carni, J.P., Lindley, Curran,Bannister and DeJoseph, JJ.