Opinion
12802 Ind. No. 3780/15 Case No. 2019-4824
01-07-2021
The PEOPLE of the State of New York, Respondent, v. Kenneth BUTLER, Defendant–Appellant
Stephen Chu, Interim Attorney-in-Charge, Office of the Appellate Defender, New York (C. Taylor Poor of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Stephen Chu, Interim Attorney-in-Charge, Office of the Appellate Defender, New York (C. Taylor Poor of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Manzanet-Daniels, J.P., Kapnick, Moulton, González, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered August 12, 2016, convicting defendant, after a jury trial, of burglary in the second degree (six counts), attempted burglary in the second degree (two counts) and possession of burglar's tools, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.
The court properly denied defendant's suppression motion. A special patrolman working at a housing complex recognized defendant and his codefendant from a wanted poster. Based on surveillance videotapes and reasonable inferences to be drawn therefrom, there was ample probable cause to believe that the two men had committed a series of burglaries in the complex (see People v. Carrasquillo, 54 N.Y.2d 248, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ; see also Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 [1949] ; People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Moreover, the existing probable cause was enhanced by the behavior of the two men shortly before their arrest, which may have been innocuous in the abstract, but which was suspicious in context. The hearing evidence also established that the search of the car that defendant and the codefendant occupied when arrested was a valid inventory search (see People v. Lee, 29 N.Y.3d 1119, 1120, 61 N.Y.S.3d 522, 83 N.E.3d 852 [2017] ; People v. Padilla, 21 N.Y.3d 268, 272–273, 970 N.Y.S.2d 486, 992 N.E.2d 414 [2013], cert denied 571 U.S. 889, 134 S.Ct. 325, 187 L.Ed.2d 158 [2013] ). The special patrolmen created a suitable electronically recorded inventory list, and otherwise followed proper procedures for a police inventory.
Defendant's argument that his lawyer's failure to request a circumstantial evidence charge constituted ineffective assistance of counsel is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Trial counsel may have had a strategic reason for not requesting the charge, such as that the language of the standard charge might not have been entirely helpful to the defense. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that the absence of a request for a circumstantial evidence charge fell below an objective standard of reasonableness, or that it deprived defendant of a fair trial or affected the outcome of the case.
A summation remark by the prosecutor, to which defendant objected on the ground of its allegedly being unsupported by evidence, constituted fair comment that drew a reasonable inference from the record. By failing to object, by making generalized objections, and by failing to request further relief after objections were sustained, defendant failed to preserve any of his remaining challenges to the summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
Defendant's claim regarding a lesser included offense is similar to an argument this Court rejected on the codefendant's appeal ( People v. Stanford, 182 A.D.3d 433, 119 N.Y.S.3d 863 [1st Dept. 2020], lv denied 35 N.Y.3d 1049, 151 N.E.3d 534 [2020] ), and we find no basis upon which to reach a different result.
We perceive no basis for reducing the sentence.