Opinion
1038 KA 18-00613
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Terry HARRIS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of aggravated criminal contempt ( Penal Law § 215.52 [1] ). We affirm.
Contrary to defendant's contention, the conviction is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant's contention that the People violated their discovery obligations with respect to the protective order itself is without merit (see People v. Mack , 193 A.D.2d 439, 439, 597 N.Y.S.2d 669 [1st Dept. 1993], lv denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170 [1994] ; see generally People v. Ranghelle , 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011 [1986] ; People v. Nichols , 163 A.D.3d 39, 48, 78 N.Y.S.3d 590 [4th Dept. 2018] ). Contrary to defendant's further contention, County Court was not obligated to impose a sanction for the People's belated disclosure of a short audio file inasmuch as defense counsel "received the materials at a time when they were still useful to [the] defense" ( People v. Martinez , 198 A.D.2d 67, 67, 603 N.Y.S.2d 441 [1st Dept. 1993], lv denied 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489 [1994] ; see People v. Collins , 203 A.D.2d 888, 889, 611 N.Y.S.2d 377 [4th Dept. 1994], lv denied 85 N.Y.2d 861, 624 N.Y.S.2d 380, 648 N.E.2d 800 [1995] ). Defendant's claims of prosecutorial misconduct on summation are unpreserved for appellate review (see People v. Haynes , 104 A.D.3d 1142, 1144, 960 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ).
The record "falls short of establishing conclusively the merit of ... defendant's claim" that defense counsel was ineffective for failing to alert him, during plea negotiations, to the possibility of persistent felony offender sentencing after trial ( People v. Lopez-Mendoza , 33 N.Y.3d 565, 573, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] ). In particular, the unsworn assertions by defendant and defense counsel on that issue raise credibility issues requiring a CPL 440.10 motion (see generally id. at 572-573, 106 N.Y.S.3d 266, 130 N.E.3d 862 ). We thus cannot decide that claim on direct appeal, i.e., "[w]ithout the benefit of additional facts that might [be] developed after an appropriate postconviction motion" ( People v. Denny , 95 N.Y.2d 921, 923, 721 N.Y.S.2d 304, 743 N.E.2d 877 [2000] ; see People v. Spotards , 23 A.D.3d 586, 587, 804 N.Y.S.2d 264 [2d Dept. 2005], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ).
Contrary to defendant's further contention, defense counsel's failure to call an expert witness at trial does not constitute ineffective assistance because defendant has not demonstrated "that such testimony ... would have assisted the jury in its determination or that he was prejudiced by its absence" ( People v. Gonzales , 145 A.D.3d 1432, 1433, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] [internal quotation marks omitted]). Nor was defense counsel ineffective for not moving to reopen the suppression hearing inasmuch as no "additional pertinent facts [were] discovered [at trial] which would have affected the [suppression] determination" ( People v. Xing Chen , 117 A.D.3d 762, 763, 985 N.Y.S.2d 158 [2d Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 17, 25 N.E.3d 354 [2014] ; see generally People v. Huffman , 41 N.Y.2d 29, 34-35, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Contrary to defendant's further contention, defense counsel was not ineffective for failing to present mitigating evidence at the persistent felony offender hearing inasmuch as defendant has not demonstrated that any genuinely mitigating evidence existed (see People v. Rosario , 157 A.D.3d 988, 995, 69 N.Y.S.3d 149 [3d Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ). We have considered and rejected defendant's remaining allegations of ineffective assistance of counsel (see generally People v. Baldi , 54 N.Y.2d 137, 146-152, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's further contention, the court properly exercised its discretion in sentencing him as a persistent felony offender (see People v. Morris , 21 A.D.3d 251, 251, 800 N.Y.S.2d 6 [1st Dept. 2005], lv denied 5 N.Y.3d 831, 804 N.Y.S.2d 45, 837 N.E.2d 744 [2005] ; see generally Penal Law § 70.10 [2] ; People v Prindle , 29 N.Y.3d 463, 467, 58 N.Y.S.3d 280, 80 N.E.3d 1026 [2017], cert denied ––– US ––––, 138 S Ct 514 [2017] ; People v. Lowery , 158 A.D.3d 1179, 1181, 71 N.Y.S.3d 247 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ). Under the circumstances of this case, "[t]he fact that defendant had been offered a favorable plea bargain does not negate the validity of the sentence imposed" ( Morris , 21 A.D.3d at 251, 800 N.Y.S.2d 6 ). Defendant's Apprendi challenge to the persistent felony offender statute is both unpreserved and meritless (see People v. Dingle , 147 A.D.3d 1080, 1081, 147 A.D.3d 1080 [2d Dept. 2017], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ; see generally Prindle , 29 N.Y.3d at 465-466, 58 N.Y.S.3d 280, 80 N.E.3d 1026 ). Defendant's remaining contentions are without merit.
All concur except Carni, J., who is not participating.