Opinion
03-09-2016
The PEOPLE, etc., respondent, v. Derrick FRANKS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered April 23, 2012, convicting him of assault in the second degree (two counts), obstructing governmental administration in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his conviction was not supported by legally sufficient evidence is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court did not err in permitting the People to cross-examine the defendant as to the underlying facts of a prior conviction, which the court, after a pretrial Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), had previously ruled would be precluded, as the defendant opened the door to such testimony on direct examination (see People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293 ; People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 ; People v. Perez, 120 A.D.3d 514, 514, 990 N.Y.S.2d 590 ).
The Supreme Court providently exercised its discretion in permitting the People to offer a recording from Rikers Island of the defendant's phone conversation with a friend as evidence of consciousness of guilt (see People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279 ; People v. Moses, 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4 ; People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 ; People v. Braithwaite, 126 A.D.3d 993, 995, 6 N.Y.S.3d 128 ; People v. De Vivo, 282 A.D.2d 770, 772, 726 N.Y.S.2d 145 ; People v. Hernandez, 118 A.D.2d 729, 500 N.Y.S.2d 61 ). Contrary to the defendant's contention, the court also providently exercised its discretion in permitting the People to call a rebuttal witness to authenticate the recordings (see CPL 260.30[7] ; People v. Boyce, 54 A.D.3d 1052, 1053, 866 N.Y.S.2d 203 ; People v. Harris, 232 A.D.2d 426, 426, 648 N.Y.S.2d 620 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court should have provided a limiting instruction as to the probative value of the consciousness of guilt evidence, since he never made such a request (see CPL 470.05[2] ; People v. Baxter, 102 A.D.3d 805, 961 N.Y.S.2d 194 ; People v. Hilton, 210 A.D.2d 180, 621 N.Y.S.2d 23 ; People v. Singleton, 121 A.D.2d 752, 504 N.Y.S.2d 167 ). In any event, to the extent that the failure to give such an instruction may be considered error, it was harmless, in light of the overwhelming evidence of the defendant's guilt, and the fact that there is no significant probability that but for the failure to give that instruction, the jury would have acquitted the defendant (see People v. Arroyo, 131 A.D.3d 1257, 1258, 16 N.Y.S.3d 769 ; People v. Brody, 82 A.D.3d 784, 785, 918 N.Y.S.2d 158 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewing defense counsel's performance in totality, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Moreover, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ). The defendant also argues that he was deprived of the right to counsel because the phone calls that he made to friends while he was incarcerated at Rikers Island were recorded. This contention is unpreserved for appellate review (see People v. Narayan, 54 N.Y.2d 106, 110, 444 N.Y.S.2d 604, 429 N.E.2d 123 ) and, in any event, without merit.