Opinion
2011-06548
05-20-2015
The PEOPLE, etc., respondent, v. David PRINCE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Berhard of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Jonathan S. Reiner of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Berhard of counsel), for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Jonathan S. Reiner of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered June 29, 2011, convicting him of murder in the second degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgement is affirmed.
The defendant failed to preserve for appellate review his contention that the admission of the testimony of a detective, inter alia, recounting his conversation with the defendant's wife, a nontestifying witness, violated the defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (see U.S. Const., 6th amend.; People v. Kelly, 58 A.D.3d 868, 872 N.Y.S.2d 499 ). The defendant did not object to the testimony on those specific grounds; he raised only a hearsay objection to this testimony (see People v. Speaks, 124 A.D.3d 689, 1 N.Y.S.3d 257, lv. granted 24 N.Y.3d 1222, 4 N.Y.S.3d 610, 28 N.E.3d 46 ; People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222 ; People v. Moreno, 303 A.D.2d 424, 755 N.Y.S.2d 868 ). In any event, the testimony “was properly admitted for the relevant, nonhearsay purpose of ‘establishing the reasons behind the detective's actions, and to complete the narrative of events leading to the defendant's arrest’ ” (People v. Speaks, 124 A.D.3d at 691, 1 N.Y.S.3d 257, quoting People v. Ragsdale, 68 A.D.3d 897, 897–898, 889 N.Y.S.2d 681 ; see People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456 ; People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ). In this regard, the trial court properly instructed the jury on the limited purpose of this testimony and that the testimony was not admitted for its truth (see People v. Tosca, 98 N.Y.2d at 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ; People v. Johnson, 40 A.D.3d at 1012, 837 N.Y.S.2d 222 ).
The defendant failed to preserve for appellate review his contention that the trial court failed to sufficiently admonish the jurors throughout the course of the trial (see People v. Baksh, 43 A.D.3d 1072, 1074, 845 N.Y.S.2d 343 ) and during deliberations (see People v. Edwards, 69 A.D.3d 755, 891 N.Y.S.2d 661 ; People v. Martin, 60 A.D.3d 871, 875 N.Y.S.2d 541 ; People v. Williams, 46 A.D.3d 585, 846 N.Y.S.2d 620 ). The failure to give an instruction pursuant to CPL 270.40 and 310.10 is not a mode of proceedings error and, hence, must be preserved for appellate review by a timely objection (see People v. Kelly, 16 N.Y.3d 803, 804, 921 N.Y.S.2d 640, 946 N.E.2d 738 ; People v. Edwards, 69 A.D.3d at 755, 891 N.Y.S.2d 661 ). In any event, the contention is without merit. The court's frequent admonitions to the jury during its preliminary instructions and throughout the trial were adequate. Contrary to the defendant's contention, CPL 310.10(2) is not applicable (see People v. Williams, 46 A.D.3d at 585, 846 N.Y.S.2d 620 ).
The defendant waived his contention that he was deprived of his statutory and constitutional rights to a trial by a jury of his peers when the trial court discharged sworn jurors numbers 1 and 10 pursuant to CPL 270.35, as both the defendant and his trial counsel expressly consented to the discharge (see People v. Ortiz, 92 N.Y.2d 955, 957, 683 N.Y.S.2d 158, 705 N.E.2d 1199 ; People v. Adonis, 119 A.D.3d 700, 701, 988 N.Y.S.2d 902 ). The defendant's contention that his waiver was not knowing, intelligent, and voluntary is unsupported by the record (cf. People v. Canales, 121 A.D.3d 14, 17, 988 N.Y.S.2d 212 ).Contrary to the defendant's contention, the record “reveals strategic or legitimate explanations for the alleged instances of ineffective assistance” by the defendant's trial counsel (People v. Nash, 52 A.D.3d 739, 739, 858 N.Y.S.2d 905 ).
The defendant's contention that the sentence imposed by the sentencing court punished him for exercising his right to a jury trial rather than accepting a plea offer is unpreserved for appellate review, as it was not raised before the sentencing court (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Seymore, 106 A.D.3d 1033, 1034, 964 N.Y.S.2d 668 ). In any event, review of the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v. Seymore, 106 A.D.3d at 1034, 964 N.Y.S.2d 668 ; People v. Hernandez, 44 A.D.3d 684, 685, 843 N.Y.S.2d 171 ). Rather, the court relied upon the appropriate factors in sentencing the defendant to a higher sentence than that which was offered during plea negotiations (see People v. Hudyih, 60 A.D.3d 1084, 1085, 876 N.Y.S.2d 156 ; People v. Herrera, 16 A.D.3d 699, 699–700, 794 N.Y.S.2d 57 ). The defendant has failed to establish the existence of any “extraordinary circumstances that would warrant disturbing the sentence imposed” in the interest of justice (People v. Bussey, 67 A.D.3d 819, 820, 887 N.Y.S.2d 858 ).