Opinion
581 KA 19-00545
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Milton BURKE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DONALD R. GERACE OF COUNSEL), FOR DEFENDANT-APPELLANT. MILTON BURKE, DEFENDANT-APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DONALD R. GERACE OF COUNSEL), FOR DEFENDANT-APPELLANT.
MILTON BURKE, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ), and criminal possession of a weapon in the second degree ( § 265.03 [3] ). We affirm.
Addressing first defendant's contentions in his main brief, we reject his contention that County Court erred in granting the People's motion to amend the bill of particulars to list one of the precise locations where defendant allegedly possessed a firearm. Because "the amendment was made by the People prior to jury selection[,] [it] was ... statutorily permissible" ( People v. Wright , 13 A.D.3d 803, 804, 785 N.Y.S.2d 809 [3d Dept. 2004], lv denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 [2005] ; see CPL 1.20 [11] ; 200.95 [8]). Additionally, inasmuch as the amendment merely narrowed the description of the location where the crime occurred, it did not expand or alter the People's theory of the case, cause defendant undue prejudice, or demonstrate that the People acted in bad faith by seeking the amendment (see Wright , 13 A.D.3d at 804, 785 N.Y.S.2d 809 ; People v. Lewis , 277 A.D.2d 1010, 1011, 716 N.Y.S.2d 204 [4th Dept. 2000], lv denied 96 N.Y.2d 736, 722 N.Y.S.2d 803, 745 N.E.2d 1026 [2001] ).
Defendant's contention that the court's ruling precluding him from eliciting certain testimony from one of his own witnesses violated his constitutional right to confrontation is unpreserved for our review because defendant did not object on that basis at trial (see People v. Liner , 9 N.Y.3d 856, 856-857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ; People v. Garcia , 2 A.D.3d 321, 322, 768 N.Y.S.2d 606 [1st Dept. 2003], lv denied 2 N.Y.3d 740, 778 N.Y.S.2d 465, 810 N.E.2d 918 [2004] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). To the extent that defendant contends that the court erred in precluding him from eliciting that testimony on the basis of hearsay, we conclude that the record is inadequate to permit appellate review of that contention (see generally People v. Dye , 78 A.D.3d 1607, 1608, 911 N.Y.S.2d 538 [4th Dept. 2010], lv denied 16 N.Y.3d 743, 917 N.Y.S.2d 624, 942 N.E.2d 1049 [2011] ; People v. Belair , 226 A.D.2d 1105, 1106, 642 N.Y.S.2d 144 [4th Dept. 1996] ).
We reject defendant's contention that he was deprived of a fair trial because the prosecutor improperly acted as an unsworn witness on summation when he described the characteristics of and sound made by a .45 caliber firearm inasmuch as that isolated comment was not so egregious as to deny defendant a fair trial, especially given the instruction to the jury that an attorney's summation is not evidence (see generally People v. Ashwal , 39 N.Y.2d 105, 109-111, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ; People v. Warmley , 179 A.D.3d 1537, 1538, 118 N.Y.S.3d 866 [4th Dept. 2020], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 284, 147 N.E.3d 554 [2020] ; People v. Fick , 167 A.D.3d 1484, 1485-1486, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ).
By objecting to the People's request, defendant preserved his contention challenging the court's decision to give the jury a missing witness instruction with respect to an alibi witness mentioned by defendant during his trial testimony (see CPL 470.05 [2] ; People v. Medina , 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011] ). We nevertheless reject defendant's contention because "the People established that the [alibi witness] would have provided testimony on a material issue in the case and would have testified favorably for defendant" ( People v. Carey , 162 A.D.3d 1476, 1477, 79 N.Y.S.3d 411 [4th Dept. 2018], lv denied 32 N.Y.3d 936, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ; see People v. Soto , 297 A.D.2d 567, 567, 747 N.Y.S.2d 160 [1st Dept. 2002], lv denied 99 N.Y.2d 564, 754 N.Y.S.2d 217, 784 N.E.2d 90 [2002] ). To the extent that defendant argues that the court erred in denying his motion for a trial order of 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 the jury ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see also People v. Mansilla , 143 A.D.3d 1263, 1263, 38 N.Y.S.3d 494 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 381, 76 N.E.3d 1084 [2017] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we also reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [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 only and thus failed to preserve for our review his present contention that he was denied his constitutional right to a speedy trial" ( People v. Walter , 138 A.D.3d 1479, 1479-1480, 30 N.Y.S.3d 459 [4th Dept. 2016], lv denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 [2016] [internal quotation marks omitted]; see People v. Schillawski , 124 A.D.3d 1372, 1373, 999 N.Y.S.2d 657 [4th Dept. 2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015]; People v. Weeks , 272 A.D.2d 983, 983, 708 N.Y.S.2d 687 [4th Dept. 2000], lv denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375 [2000] ), and we 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 was ineffective in failing to make that argument in the motion to dismiss because it had little or no chance of success (see People v. Brinson , 151 A.D.3d 1726, 1726, 55 N.Y.S.3d 564 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Sweet , 98 A.D.3d 1252, 1253, 951 N.Y.S.2d 285 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013]; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [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 was otherwise denied effective assistance of counsel. Defendant's contention with respect to defense counsel's failure to secure the testimony of an alibi witness involves matters outside the record and must be raised in a CPL 440.10 motion (see e.g. People v. Barksdale , 191 A.D.3d 1370, 1371, 141 N.Y.S.3d 608 [4th Dept. 2021], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 197, 169 N.E.3d 555 [2021] ; People v. Meyers , 188 A.D.3d 1732, 1734, 136 N.Y.S.3d 640 [4th Dept. 2020] ; People v. Scott , 181 A.D.3d 1220, 1220, 121 N.Y.S.3d 458 [4th Dept. 2020] ). Contrary to defendant's contention, we conclude that defense counsel was not ineffective in failing to provide defendant with notice of his right to testify before the grand jury or to have him testify before the grand jury. The record belies defendant's contention that he did not receive notice of the grand jury proceedings. Additionally, with respect to defendant's argument that defense counsel was ineffective for not facilitating defendant's testimony before the grand jury, defendant did not establish that he was prejudiced by that purported failure or that the outcome would have been different if he had testified (see People v. Lostumbo , 182 A.D.3d 1007, 1009, 123 N.Y.S.3d 319 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 821, 151 N.E.3d 502 [2020] ; People v. Robinson , 151 A.D.3d 1701, 1701, 53 N.Y.S.3d 858 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Indeed, we note that defendant did testify at trial and was nonetheless found guilty (see People v. Hogan , 26 N.Y.3d 779, 787, 48 N.E.3d 58 [2016] ).
Finally, we have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.