Opinion
1023 KA 19-01219
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Sandy JONES, Defendant-Appellant.
ANTHONY J. LANA, BUFFALO, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
ANTHONY J. LANA, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, 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, upon a jury verdict, of assault in the first degree ( Penal Law § 120.10 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]).
Defendant's contention that Supreme Court erred at trial by admitting in evidence testimony about his flight from the scene of the crime is unpreserved for our review (see People v. Turner , 197 A.D.3d 997, 998-999, 153 N.Y.S.3d 366 [4th Dept. 2021], lv denied 37 N.Y.3d 1061, 154 N.Y.S.3d 643, 176 N.E.3d 679 [2021] ; see also People v. Cullen , 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792 [4th Dept. 2013], affd 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014] ). In any event, the contention lacks merit. "The limited probative force of flight evidence ... is no reason for its exclusion" ( People v. Yazum , 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963], rearg denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217 [1964] ). Moreover, "ambiguities or explanations tending to rebut an inference of guilt [arising from evidence of flight] do not render flight evidence inadmissible but, rather, must be introduced as a part of the defense" ( id. at 305, 246 N.Y.S.2d 626, 196 N.E.2d 263 ; see People v. Waterman , 39 A.D.3d 1259, 1259, 833 N.Y.S.2d 807 [4th Dept. 2007], lv denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007] ). Contrary to defendant's related contention, the court did not err in charging the jury with respect to evidence of flight. There was sufficient evidence of flight to warrant a charge on that evidence (see People v. Martinez , 298 A.D.2d 897, 899, 749 N.Y.S.2d 118 [4th Dept. 2002], lv denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922 [2002], cert denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515 [2003], reh denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126 [2003] ), and the court gave appropriate limiting instructions in the jury charge that evidence of flight is of slight value and that there may be an innocent explanation for flight (see People v. Hall , 202 A.D.3d 1485, 1487, 162 N.Y.S.3d 627 [4th Dept. 2022], lv denied 38 N.Y.3d 1134, 172 N.Y.S.3d 852, 193 N.E.3d 517 [2022] ).
Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct on summation is, for the most part, unpreserved for our review inasmuch as defendant failed to object to all but one of the statements he now challenges on appeal (see generally People v. Freeman , 206 A.D.3d 1694, 1695, 170 N.Y.S.3d 445 [4th Dept. 2022] ; People v. Smith , 150 A.D.3d 1664, 1666, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ). In any event, the challenged remarks were "not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Elmore , 175 A.D.3d 1003, 1005, 107 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 277, 142 N.E.3d 1179 [2020] [internal quotation marks omitted]) and did not shift the burden to defendant (see People v. Coleman , 32 A.D.3d 1239, 1240, 821 N.Y.S.2d 316 [4th Dept. 2006], lv denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795 [2007] ).
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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jurors "failed to give the evidence the weight it should be accorded" ( People v. Albert , 129 A.D.3d 1652, 1653, 12 N.Y.S.3d 462 [4th Dept. 2015], lv denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, we reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to meet his burden of demonstrating "the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Carver , 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).