Opinion
141 KA 18-00637
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Jermaine JENNINGS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Now, upon remittitur from the Court of Appeals and having considered the issues raised but not determined on the appeal to this Court,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Jennings , 37 N.Y.3d 1078, 155 N.Y.S.3d 150, 177 N.E.3d 213 [2021], revg People v. Jennings , 191 A.D.3d 1429, 141 N.Y.S.3d 816 [4th Dept. 2021] ). Defendant and a codefendant were charged with murder in the second degree ( Penal Law § 125.25 [1] ), by acting in concert and intentionally causing the death of the victim. Following a joint trial, the codefendant was acquitted, but defendant was convicted as charged. We previously reversed the judgment convicting defendant, concluding that defendant was denied meaningful representation at trial because there was no reasonable and legitimate trial strategy for his defense counsel's failure to object to the repugnant verdicts ( Jennings , 191 A.D.3d at 1429-1430, 141 N.Y.S.3d 816 ). The Court of Appeals reversed, stating that defense counsel's "failure to challenge the verdict as repugnant did not render the representation ineffective because the issue was not clear-cut and dispositive given the jury charge" ( Jennings , 37 N.Y.3d at 1079, 155 N.Y.S.3d 150, 177 N.E.3d 213 ). The Court of Appeals remitted the matter to this Court for "consideration of the facts and issues raised but not determined" previously ( id. ).
After review of defendant's contentions upon remittitur, we affirm the judgment of conviction. Contrary to defendant's contention, we conclude that Supreme Court did not err in admitting in evidence photographs depicting the fatal injuries sustained by the victim. The photographs were "relevant to a material issue at trial, and elucidated the testimony of the medical examiner regarding the cause of death" ( People v. Lawson , 114 A.D.3d 962, 963, 980 N.Y.S.2d 586 [2d Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; see People v. Trinidad , 107 A.D.3d 1432, 1432, 966 N.Y.S.2d 631 [4th Dept. 2013], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ). Defendant failed to preserve for our review his related contention that the limiting instruction given by the court did not mitigate the allegedly prejudicial effect of the photographs (see People v. Delbrey , 179 A.D.3d 1292, 1296, 117 N.Y.S.3d 356 [3d Dept. 2020], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 33, 148 N.E.3d 497 [2020] ; People v. Irby , 140 A.D.3d 1319, 1323, 33 N.Y.S.3d 530 [3d Dept. 2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 [2016] ), 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] ). Contrary to the further contention of defendant, defense counsel was not ineffective for failing to object to certain comments made by the prosecutor during summation or for failing to move for a mistrial based on those comments. The challenged statements "were fair comment on the evidence and did not constitute prosecutorial misconduct" ( People v. Inman , 134 A.D.3d 1434, 1435, 21 N.Y.S.3d 775 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; see People v. Edwards , 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ).
Additionally, we reject defendant's contention that defense counsel was ineffective in failing to cross-examine an eyewitness about her mental health history inasmuch as defendant failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failure" ( People v. Nicholson , 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ). Finally, to the extent that defendant contends that defense counsel was ineffective for failing to make a record of the court's rulings concerning the witness's mental health records, the contention is based on matters outside the record and thus must be raised in a motion pursuant to CPL article 440 (see generally People v. Maffei , 35 N.Y.3d 264, 269-270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ).