Opinion
149 KA 17–01960
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Bernard A. BROOKS, Jr., Defendant–appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT. BERNARD A. BROOKS, JR., DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT.
BERNARD A. BROOKS, JR., DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment that convicted him after a jury trial 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, County Court erred in failing to remove the jury foreperson as unavailable or grossly unqualified due to a possible scheduling conflict (see People v. Sanderson, 68 A.D.3d 1716, 1717, 891 N.Y.S.2d 571 [4th Dept. 2009], lv denied 14 N.Y.3d 844, 901 N.Y.S.2d 151, 927 N.E.2d 572 [2010] ; see generally People v. Payne, 68 A.D.3d 1800, 1800, 891 N.Y.S.2d 777 [4th Dept. 2009], lv denied 14 N.Y.3d 843, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010], reconsideration denied 15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227 [2010] ; People v. Clark, 28 A.D.3d 1190, 1190, 815 N.Y.S.2d 387 [4th Dept. 2006] ). In any event, defendant's contention lacks merit. The record does not establish that the foreperson was unavailable because of illness, incapacity, or any other reason (see CPL 270.35[1] ), the court conducted the requisite "reasonably thorough inquiry" regarding the foreperson's possible scheduling conflict with respect to the next day of scheduled deliberations ( CPL 270.35[2][a] ; see People v. Newton, 144 A.D.3d 1617, 1617, 41 N.Y.S.3d 846 [4th Dept. 2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ), and the foreperson informed the court that she wished to continue deliberations. The record also does not establish that the foreperson was grossly unqualified based on an alleged state of mind that would prevent her from rendering an impartial verdict (see People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). The court conducted a "probing and tactful inquiry" into the matter ( People v. Rodriguez, 71 N.Y.2d 214, 219, 524 N.Y.S.2d 422, 519 N.E.2d 333 [1988] [internal quotation marks omitted] ), and the foreperson stated that she would be "sad" if she could not be with her children for a scheduled medical procedure and that it would be "tough" if she had to postpone the procedure. The foreperson did not indicate that she would be unable to focus on the deliberations or that her "sad" state of mind would prevent her from rendering an impartial verdict (cf. People v. Spencer, 29 N.Y.3d 302, 311, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017], rearg. denied 31 N.Y.3d 1074, 78 N.Y.S.3d 272, 102 N.E.3d 1053 [2018] ).
Defendant also failed to preserve his contention that the court's response to the jury regarding the jury foreperson's scheduling conflict was coercive and implicitly urged the jury to rush its verdict (see People v. Morales, 36 A.D.3d 631, 632, 831 N.Y.S.2d 77 [2d Dept. 2007], lv denied 8 N.Y.3d 925, 834 N.Y.S.2d 515, 866 N.E.2d 461 [2007] ; People v. Robertson, 217 A.D.2d 989, 990–991, 630 N.Y.S.2d 438 [4th Dept. 1995], lv denied 86 N.Y.2d 846, 634 N.Y.S.2d 455, 658 N.E.2d 233 [1995] ). In any event, defendant's contention lacks merit inasmuch as the court's instructions to the jury did not attempt to compel, urge, or shame the jury into reaching a verdict (see generally People v. Anderson, 149 A.D.3d 1407, 1415, 54 N.Y.S.3d 176 [3d Dept. 2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 [2017] ). Rather, the instructions were open ended and encouraging (see People v. Langevin, 164 A.D.3d 1597, 1597, 84 N.Y.S.3d 284 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 584, 121 N.E.3d 211 [2019] ; Morales, 36 A.D.3d at 632, 831 N.Y.S.2d 77 ).
Defendant correctly concedes that he failed to preserve his contention that he was denied a fair trial due to the prosecutor's alleged misconduct on summation (see People v. Laurent, 156 A.D.3d 1489, 1489, 65 N.Y.S.3d 853 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ; People v. Wellsby, 30 A.D.3d 1092, 1093, 816 N.Y.S.2d 805 [4th Dept. 2006], lv denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290 [2006] ). In any event, the allegedly improper comments during the prosecutor's summation were "fair response[s] to defense counsel's summation" ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [4th Dept. 2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted] ).
Inasmuch as the prosecutor's comments on summation were not improper, defense counsel's failure to object to them did not deprive defendant of effective assistance of counsel (see People v. Eckerd, 161 A.D.3d 1508, 1509, 76 N.Y.S.3d 710 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). To the extent that defendant contends that defense counsel was ineffective for mentioning uncharged crimes during the trial and on summation, defendant "failed to demonstrate that those alleged errors were not strategic in nature" ( People v. Henry, 74 A.D.3d 1860, 1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ) and, in any event, "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that [his] attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
We conclude that the sentence is not unduly harsh or severe. We note that the certificate of conviction incorrectly states that defendant was sentenced upon a guilty plea, rather than upon a jury verdict, and does not reflect that defendant was sentenced as a second felony offender. The certificate of conviction must therefore be amended to correct those clerical errors (see People v. Baldwin, 173 A.D.3d 1748, 1749–1750, 103 N.Y.S.3d 222 [4th Dept. 2019], lv. denied 34 N.Y.3d 928, 109 N.Y.S.3d 736, 133 N.E.3d 440 [2019] ).
Finally, we have considered the contentions in defendant's pro se supplemental brief and conclude that they do not require reversal or modification of the judgment.