Opinion
898 KA 19-01496
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Bryan K. COLON, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. BRYAN K. COLON, DEFENDANT-APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JERRY MARTI OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRYAN K. COLON, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JERRY MARTI OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences on counts one and two of the indictment run consecutively to each other and concurrently with the remaining counts and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of six counts of burglary in the second degree ( Penal Law § 140.25 [2] ). The conviction arises from six home burglaries. Defendant contends in his main and pro se supplemental briefs that the evidence is legally insufficient to support his conviction of certain counts because the testimony of his accomplices was not supported by the requisite corroborative evidence (see CPL 60.22 [1] ). That contention is not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not " ‘specifically directed’ at [that] alleged error" ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, the contention lacks merit (see People v. Jacobs , 195 A.D.3d 1434, 1435, 145 N.Y.S.3d 502 [4th Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 475, 185 N.E.3d 996 [2022] ; see also People v. Davis , 28 N.Y.3d 294, 303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ). Defendant further contends in his main brief that the evidence is legally insufficient to support the conviction because there is insufficient evidence that defendant was the perpetrator of the burglaries. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ), we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant was the perpetrator of the burglaries ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The trial evidence included, inter alia, the testimony of defendant's two accomplices who implicated defendant in five of the burglaries, evidence regarding defendant's rental of various vehicles used in the commission of the burglaries, cell phone tower records establishing that defendant was in the vicinity of the homes at the time of the crimes, and testimony of neighbors of the homeowners who observed defendant or the rental vehicles near or at the burglarized homes. In addition, 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 conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We further reject defendant's contention in his main brief that he was denied effective assistance of counsel (see generally People v. Benevento , 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). In particular, defense counsel was not ineffective based on his elicitation of allegedly damaging testimony in cross-examining one of defendant's accomplices and defense counsel's failure to object to testimony of the other accomplice regarding his motive to testify. Those contentions involve "simple disagreement[s] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial," and thus are insufficient to establish ineffective assistance of counsel ( People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Contrary to defendant's additional claim, defense counsel was not ineffective for failing to object to certain comments made by the prosecutor during summation inasmuch as the prosecutor either did not engage in misconduct or any error did not deny defendant a fair trial (see People v. Garrow , 171 A.D.3d 1542, 1546, 99 N.Y.S.3d 827 [4th Dept. 2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 459 [2019] ; People v. Lewis , 140 A.D.3d 1593, 1595, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). Moreover, defendant was not deprived of a fair trial by the cumulative effect of the errors allegedly committed by defense counsel.
We agree with defendant, however, that the aggregate sentence of imprisonment is unduly harsh and severe considering the disparity between the plea offer and the sentence of imprisonment imposed following trial (see People v. Lewis-Bush , 204 A.D.3d 1424, 1427, 166 N.Y.S.3d 783 [4th Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 451, 191 N.E.3d 403 [2022] ; People v. Boyd , 175 A.D.3d 1030, 1031-1032, 108 N.Y.S.3d 101 [4th Dept. 2019], lv denied 34 N.Y.3d 1015, 114 N.Y.S.3d 748, 138 N.E.3d 477 [2019] ). We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences on the first and second counts shall run consecutively to each other and concurrently with the sentences imposed on the remaining counts (see CPL 470.15 [6] [b] ).
We have reviewed defendant's remaining contention in his pro se supplemental brief and conclude that it lacks merit.