The People, Respondent,v.Leroy Carver, Appellant.BriefN.Y.Apr 26, 2016Brief Completed: July 30, 2015 To Be Argued By: Scott Myles Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- LEROY CARVER, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL-20 15-00068 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Scott Myles Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 75~-4541 Fax: (585) 753-4576 TABLE OF CONTENTS Page QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 3 POINT I Defendant received meaningful representation 8 A. Suppression II B. DNA evidence 15 C. Alleged prosecutorial misconduct 17 D. Defendant's predicate status and sentencing 18 CONCLUSION 2I TABLE OF AUTHORITIES CASES People v Baldi, 54 NY2d 137 ( 1981) ........................................... 8, 16 People v Basse//, 55 AD 3d 1434, lv denied II NY3d 922 (2009) . . . . . . . . . . . . . . . . . . . . . . 12 People v Benevento, 91 NY2d 708 ( 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11 People v Billups, 234 AD2d 93 7 (4th Dept 1996) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 14 People v Brown, 7 NY2d 359 (1960) ............................................. 20 People v Bruce, 57 AD2d 1024 (3rd Dept 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v Burton, 6 NY3d 584 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Caban, 5 N.Y.3d 143 (2005) ........................................... 15 People v Clark, 28 AD 3d 1231 (4th Dept 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Daniels, 103 AD3d 1204 (4th Dept 2013) .................................. 13 People v Flores, 84 NY2d 184 (1994) .. . . .. .. . .. .. . .. .. .. . . . . .. . . .. .. . . .. . . . . . . .. . 9 People v. Frazier, 63 A.D.3d 1633 (4th Dept 2009), tv denied 12 NY 3d 925 (2009) . . . . . . . . 17 People v Goodson, 85 AD 3d 1569 (4th Dept 2011 ), lv denied 17 NY3d 953 (20 11) . . . . . . . . 13 People v Green, 108 AD3d 782 (3rd Dept 2013), lv denied21 NY3d 1074 (2013) ......... 15 People v Koonce, Ill AD3d 1277 (4th Dept 2013) ................ . ............ .. ... 18 People v Lightner, 56 AD 3d 1274 (4th Dept 2008), lv dismissed 12 NY 3d 760 (2009) . . . . . . 12 People v At/arcial, 41 AD 3d 1308 (4th Dept 2007), tv denied 9 NY 3d 878 (2007) . . . . . . . . . . 11 People v Morrison, 48 AD 3d 1044 (4th Dept 2008), lv denied I 0 NY3d 867 (2008) . . . . . . . II People v Ramirez-Portoreal, 88 NY2d 99 ( 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Rivera, 71 NY2d 705 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ii People v Roman, 107 AD3d 1441 (4th Dept 2013), lv denied2I NY3d 1045 (2013) ..... 19,20 People v. Roque, 99 N.Y.2d 50 (2002) ....................................... ... .. 13 People v Ross, 106 AD3d 1194 (3rd Dept 2013), lv denied 22 NY3d 1090 (2014) .......... 14 People v Savage, 59 AD 3d 817 (3rd Dept 2009), lv denied 12 NY3d 920 (2009) . . . . . . . . . . . 14 People vStanley, 108 AD3d I 129 (4th Dept 2013), lvdenied22 NY3d 959 (2013) .... . .... 15 People v Stultz, 2 NY3d 277 (2004), rearg denied 3 NY3d 702 (2004) . . . . . . . . . . . . . . . . . . 12 People v Turner, 5 NY3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v Whitfield, 81 NY2d 904 (1993) .......................................... 14 People v Wragg, 115 AD3d 1281 (4th Dept 2014) .. . .. . ..... . ...................... 12 STATUTES CPL § 440.10 ..................................... . ........................ . 19 CPL § 710.30 .............................................. . ...... . .......... 9 Penal La\v § 140.25 .. .... . . ..... . ...... . .. . ... ... ...... . .... ..... ......... . ... 2 ... lll QUESTIONS PRESENTED Question One: Did defendant receive effective assistance of counsel? Answer Below: Yes PRELIMINARY STATEMENT Defendant Leroy Carver was convicted, upon a jury verdict rendered on April 9, 2010, of two counts of burglary in the second degree (Penal Law§ 140.25 ) in Monroe County Court (David D. Egan, J.) (bound record on appeal [hereinafter no prefix] 16, 511-512). Defendant was sentenced, as a second violent felony offender, on April 22, 20 I 0 to two concurrent determinate terms of 15 years of incarceration with five years of postrelease supervision on each ( 16, 583 ). There has been no stay of the sentence. Defendant is currently incarcerated. (http://nysdocslookup.docs.state.ny.us [DIN: lOB 1328]) By order and memorandum decision dated January 2, 2015, the Supreme Court, Appellate Division, Fourth Department, affirmed the judgment of conviction (6-13). Justices Fahey and Whalen wrote a dissenting opinion. The Hon. Gerald J. Whalen, Associate Justice of the Appellate Division, Fourth Department granted leave to appeal to this Court (2-3). 2 STATEMENT OF FACTS The charges against defendant stem from an incident on July 25, 2009 when he burglarized two homes in the Village of Fairport with co-defendant Curtis Tindale (hereinafter "Tindale"). On the morning of July 25,2009, Fairport Police responded to West Church Street on the report of a burglary ( 196-198, 316). A rear window of the home was forced open, with the screen removed, and a sliding glass door was also ajar ( 198, 317). When homeowner James Oleksyn woke up at 5:30A.M. that day, he entered the kitchen and discovered the open windows and door (204-205, 211-212). Mr. Oleksyn' s laptop, digital camera, and wallet, among other things, were missing (205, 214-215). In addition, the purse of his overnight guest, Debra Maynard, had been taken (226-227, 317). The house next door, owned by Lisa Mingoia, had also been burglarized (200, 216, 318, 322-323, 328-329,439-452, 454). A chair was pushed up to an open window, with the screen removed, on the east side of the house, and the front door was open (200, 202, 441-443). Inside, the residence had been "ransacked" throughout (20 1, 444, 446, 448-449). Earlier on July 25, 2009, at about 4:30A.M., Fairport Police Sergeant Matthew Nielsen was patrolling the Village of Fairport on North Main Street 3 (231-232, 337). At about .9 miles from the location of the burglaries, he conducted a routine traffic violation stop on a red Pontiac Aztec that had just exited a municipal parking lot (232, 305, 337-340, 342). As Sgt. Nielsen approached vehicle on the driver's side, he instructed the driver to shut the partially open driver's door (233). The driver did not comply, and Sgt. Nielsen shut the door himself (234). There were two occupants in vehicle, the driver and a front passenger, both awake and alert (234). Sgt. Nielsen requested identification, but neither man could produce any (234). The passenger, identified later as defendant, gave a false name and identifying information (235-237, 240, 303). The men were "very anxious," "very nervous," sweating, and they were slow to answer Sgt. Nielsen's questions (237, 241). During this conversation, Sgt. Nielsen observed "several large duffel ... bags on the back seat" (241 ). A pair of black gloves could be seen on top of a bag, and the edge of a laptop computer could be seen at the top of an open bag (241- 242). When Sgt. Nielsen walked back to his police vehicle to verify the information that he had received, the driver, later identified as Tindale, exited the Aztec and fled, carrying a tan bag (242). Sgt. Nielsen ran back to the Aztec and saw that the defendant had his seatbelt off and was starting to open the car door (242-243). Sgt. Nielsen ordered the defendant out of the car and took him into 4 custody while he continued his investigation (243-244). A small green duffel bag with a long screwdriver sticking out of it (People's exhibit number 45) and a pair of black leather gloves (People's exhibit number 47) were found on the front passenger floorboard (243, 246, 247, 249-250, 272, 275). A plastic bag containing items belonging to Debra Maynard, including her cell phone, and Mr. Oleksyn's camera was also found on the front passenger floorboard (263, 265-266). A blue digital camera belonging to Lisa Mingoa was recovered from left breast pocket of defendant's jacket (244-252, 261 [People's exhibit number 44], 286-287, 446). Another screwdriver was found under the driver's seat (245, 249, 288-289, 290). Canvas gloves were found in the back seat (246, 249, 271 [People's exhibit number 46]). Additional items belonging to Mr. Oleksyn, including another camera and binoculars, were found in the back seat (269, 292). Three additional bags containing property belonging to Lisa Mingoia were found in the back of the vehicle (276, 278-279,291-293,295-297, 451-453). Two laptop computers, belonging to Lisa Mingoia and Mr. Oleksyn respectively, and Mr. Oleksyn's wallet were also recovered from the Aztec (305-306, 307 [wallet found at defendant's feet], 367, 447). Debra Maynard's purse and Mr. Oleksyn' s address book were recovered from Perinton Park later that morning (307-314). 5 Sgt. Nielsen testified that, in his professional experience, screwdrivers were frequently used in burglaries (307). At some point during the investigation, a cigarette (People's exhibit number 56) that had been smoked by defendant at the police department was collected and sent to the Monroe County Public Safety Laboratory (281-283, 330). The cigarette, along with both pairs of gloves found in the car, were submitting for DNA testing (398, 400-402,406-407,414, 416). The results of the DNA testing determined that defendant could not be excluded as a contributor to the DNA samples extracted from the leather gloves (417-418, 423-425). The probability of selecting an unrelated individual having the same DNA profile as the mixture found in the left glove was one in 4,500 (426, 428, 433). The probability of selecting an unrelated individual who could be a contributor to the mixture found in the right glove was less than one in 6,090 (426, 428, 433). At trial, defendant testified that he was deaf in his left ear and had "very little hearing" in his right ear as a result of a military incident where he narrowly missed being shot in the head (458). On July 24, 2009, defendant ran into a longtime friend, Harold, and co-defendant Tindale in the High Falls area of Rochester (458-460). They started drinking together, and defendant rode around with them to several parks, including Hamlin Beach, for about three hours ( 460, 6 461-462, 473). Defendant felt ill as a result of his alcohol consumption, and he passed out in the passenger seat as they headed down Lake Avenue (460-461). The men eventually ended up at a Fairport bar, but defendant remained in the truck and feel asleep (462-463). At some point, defendant noticed that the truck was moving again, and Tindale, who was driving, advised him that they were being pulled over by the police (463, 479). Defendant could not hear what the police officer was saying, but at Tindale's prompting, he gave the officer a false name (464). When the officer walked away from the truck, Tindale opened the door and fled ( 464 ). Defendant was then taken into custody at gunpoint (465). Defendant repeatedly advised the police that he was deaf (464, 466-468, 483). He denied any knowledge of the stolen items ( 468) or even noticing them in the vehicle ( 482). Defendant also claimed that the jacket that he was wearing, and the digital camera found inside the pocket, did not belong to him; he had borrowed the coat, taking it from the back seat of the car (480, 485, 498-499). Upon being questioned about a prior conviction on cross-examination, defendant stated that he had been "framed" (490, 494-495). By it's verdict, the jury convicted defendant as charged (575). 7 POINT I Defendant received meaningful representation Defendant contends he received ineffective assistance of counsel because he: ( 1) failed to raise a suppression claim; (2) failed to demonstrate a fundamental understanding of the scientific evidence; (3) failed to object to prosecutorial misconduct; (4) failed to properly advise him regarding the constitutionality of a prior conviction; and (5) failed to advocate for a more favorable sentence. (App Br, 22-59). However, there has been no demonstration of the absence of a legitimate strategy, and, viewed in its totality, the representation was meaningful. Effective assistance of counsel will be found when "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 ). In order to prevail on this claim, "'it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712 , quoting People v Rivera, 71 NY2d 705, 709 ). However, "[a]s long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (Benevento, 91 NY2d at 712-713). "[A] simple disagreement with strategies, tactics or the scope of possible 8 cross-examination, weighed long after the trial, does not suffice" (People v Flores, 84 NY2d 184, 187 [ 1994 ]). Here, defense counsel appeared with defendant for his arraignment on the indictment charging him with two counts of burglary in the second degree (20-23). He reserved his right to make a bail application for two appearances (20-28). Counsel filed an omnibus motion requesting, among other things, discovery, a bill of particulars, a Sandoval and Molineux rulings, Brady material, and inspection of the Grand Jury minutes and dismissal of the indictment, and preclusion of identification testimony under CPL 710.30 (630-642). When defense counsel received discovery related to DNA evidence, he advised the trial court that he had obtained an expert to review the material (48-52). During the pretrial Sandoval hearing, defense counsel objected to cross-examination of defendant on the prior burglary conviction (56-57). He successfully objected to Molineux evidence concerning an incident during which defendant was discovered knocking on the door of a residence in a suspicious manner (58). At trial, defense counsel meaningfully participated in voir dire and jury selection (1 04-110, 112-117, 119 [Batson challenge], 121, 141-147, 159, 170-177). Counsel made an opening statement that set forth a reasonably sound theory that defendant, who had been drinking and partying that night, passed out in a 9 vehicle driven by co-defendant Tindale (194). He told the jury that when defendant woke up, the vehicle had been stopped by police, and, shortly thereafter, Tindale fled, "leaving [defendant] holding the bag" (194). Counsel also made a brief argument with respect to the DNA evidence in an attempt to cast doubt on the strength of the evidence (194-195). During the presentation of the People's case, defense counsel: (1) made objections (207-210, 229, 256, 257, 362,424 [DNA testimony], 477,486,487, 489,491,492, 495-496); cross-examined witnesses (221, 336-359, 369-370, 372- 374, 393, 394-395, 408-409, 427-433); conducted voir dire concerning the admission of certain evidence (254-256, 404); moved for a trial order of dismissal on the ground that there was no evidence that defendant participated in the burglaries ( 455); and participated in the jury charge conference (502-51 0, 512, 514-515). Defense counsel cross-examined Sgt. Nielsen on, among other things, whether defendant had advised the sergeant during the traffic stop that he was deaf (346). Sgt. Nielsen denied this, testifying that defendant had looked at him during their conversation and had responded to his questions appropriately (347). Counsel further elicited testimony that defendant was polite and cooperative during his arrest (349), and his fingerprints were not found at the crime scenes 10 (354, 359). During his cross-examination of forensic biologist Mara Sommer, defense counsel drew testimony that the terminology used during her direct examination was not "definitive," and that the laboratory did not report exact matches (427). When questioned about the partial and inconclusive results contained in her report, Ms. Sommer stated that there were numerous reasons, including the possibility that the DNA was degraded (430). Counsel then elicited testimony illustrating the relative weight of the Ms. Sommer's statistical findings ( 431-432). In light of the foregoing, defendant received meaningful representation, and he has failed to meet his "burden of establishing the absence of any legitimate explanations for [defense counsel's] strategies" (People v Morrison, 48 AD3d 1044, 1045 [4th Dept 2008], lv denied 10 NY3d 867 ; see Benevento, 91 NY2d at 712-713). A. Suppression The fact that defense counsel did not make particular pretrial motion or request a particular pretrial hearing does not necessarily constitute ineffective assistance of counsel (see People v Marcial, 41 AD3d 1308, 1308 [4th Dept 2007] lv denied 9 NY3d 878 ). "[T]o establish that defense counsel's failure to make a particular pretrial motion constituted ineffective assistance of counsel, ll defendant must show that the particular motion, if made, would have been successful" (People v Bassett, 55 AD3d 1434, 1437 [4th Dept 2008], lv denied 11 NY3d 922  [internal citations and quotation marks omitted]). The failure to make a motion that has little chance of success does not constitute ineffective assistance of counsel (People v Wragg, 115 AD3d 1281, 1282 [4th Dept 2014], quoting People v Stultz, 2 NY3d 277, 287 , rearg denied 3 NY3d 702 ). Initially, "[t]he police were justified in the initial stop of the vehicle driven by one defendant in which the other defendant was a passenger, based on the observation that a traffic infraction had been committed" (People v Lightner, 56 AD3d 1274, 1274 [4th Dept 2008], lv dismissed 12 NY3d 760 ). Sgt. Nielsen's uncontradicted testimony was that he stopped the vehicle because he observed the front windshield was obstructed by a large sticker and an item hanging from the rear-view mirror, in violation of the Vehicle and Traffic law (232). Upon being properly stopped by police, defendant and Tindale could produce no identification, and they were very nervous and evasive (234, 237). Sgt. Nielsen immediately smelled the odor of alcohol in the vehicle (239). The co- defendants told the sergeant that they had been sitting in the parking lot since the adjacent bar had closed; information that he knew to be false because he had 12 driven past the empty lot several times since 2:30A.M. (239-240). He observed several large duffel bags, black gloves, and a laptop computer in the back seat (241 ). Tindale subsequently fled on foot, and the defendant was attempting to exit the vehicle when Sgt. Nielsen ran back to it (242-243). As Sgt. Nielsen was removing defendant from the passenger seat to conduct a pat search for weapons, he observed a long screwdriver and a pair of gloves located at defendanf s feet (242-243). Based on these observations, and in light of his professional experience, Sgt. Nielsen had a reasonable suspicion that the defendant had committed, was committing or was about to commit a crime, and was justified in detaining him for further investigation (People v. Roque, 99 N.Y.2d 50 ). Sgt. Nielsen also had an articulable basis to fear for his safety, which justified the pat search (see People v Daniels, 103 AD3d 1204, 1204-1205 [4th Dept 2013], citing People v Goodson, 85 AD3d 1569, 1570 [4th Dept 2011], lv denied 17 NY3d 953 ). More significantly, the record shows that defendant rejected ownership of the coat and the camera and thus, he fails to establish an expectation of privacy in those items ( 485). "There is no legal basis for suppression and, hence, no need for a hearing, unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure" (People v Burton, 6 NY3d 584, 587 ). 13 "Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy" (id.). At trial, defendant testified that neither the coat that he was wearing nor the digital camera located in the pocket belonged to him: "I told the officers when they asked me the same thing that the camera is not mine ... Like I said before, the camera is not mine. I never seen the camera before" (485). Once defendant voluntarily rejected any ownership of the coat or the camera, he waived any expectation of privacy he had in those items (see People v Whitfield, 81 NY2d 904,906 ; People v Clark, 28 AD3d 1231, 1232 [4th Dept 2006] [defendant established no privacy expectation in shaving bag that she stated belonged to her friend]; People v Billups, 234 AD2d 937, 937 [4th Dept 1996] ["because defendant denied ownership of the purse and had no reasonable expectation of privacy in it, he lacks standing to challenge its seizure"]; People v Ross, 106 AD3d 1194 [3rd Dept 2013], lv denied 22 NY3d 1090 ; People v Savage, 59 AD3d 817,820 [3rd Dept 2009], lv denied 12 NY3d 920  ["By denying ownership of the bags during a properly initiated police inquiry, defendant voluntarily waived any privacy expectation" in bags he had been carrying]; compare People v Ramirez-Portoreal, 88 NY2d 99, 110 ). Consequently, defense counsel was not ineffective for failing to bring a suppression motion 14 where defendant lacked standing to contest the admissibility of evidence, and the motion had no chance of success (People v. Caban, 5 N.Y.3d 143 ). B. DNA evidence With respect to the DNA evidence, defendant has failed to show the absence of a strategic or other legitimate explanation for defense counsel's failure to call an expert witness (see People v Stanley, 108 AD3d 1129, 1130-1131 [4th Dept 2013], lv denied 22 NY3d 959  [defense counsel's failure to call an expert on eyewitness identification was not ineffective assistance]; People v Green, 108 AD3d 782, 786 [3rd Dept 2013], lv denied 21 NY3d 1074  [failure to call rebuttal medical or child sexual abuse accommodation syndrome experts was not ineffective assistance]). In light of defense counsel's indication that he consulted a DNA expert, there are legitimate reasons for declining to call said expert, particularly if the anticipated testimony would be detrimental to the defense. Moreover, as to defense counsel's blunder regarding the statistical DNA analysis in his opening statement (194), any error in this regard is harmless, and does not indicate a lack of understanding of the DNA evidence. In fact, although he misstated the significance of the DNA probabilities in his opening statement, his cross-examination of the forensic technician who conducted the DNA analysis demonstrated that defense counsel had a full understanding of the DNA evidence 15 (427-433). In his cross-examination, defense counsel immediately focused on the low statistical numbers returned from the DNA analysis in this case (427). Counsel got the technician to agree that high quality DNA results often return probabilities in the quadrillions or quintillions, whereas in this case the probability was only in the thousands (431-432). Counsel then used an accurate analogy to illustrate to the jury the unreliability of the DNA results, "So in this case, where the probability of another individual contributing the DNA isolated from the leather gloves is one in 4,500 or one in 6,090, we might expect that if we stood at the comer of Main Street and State Street in the city of Rochester for a few hours, we might see five or six thousand people pass through that intersection, and any one of those people might be the source of the DNA isolated from the gloves, correct?" ( 431-432) Counsel also got the technician to admit that the DNA could have been degraded, and that might explain the inconclusive results (429-430). Taken as a whole, defense counsel's representation in regards to the DNA evidence was meaningful and effective (Baldi at 147). In light of his subsequent representation, counsel's initial mistake was not so prejudicial as to deprive defendant of meaningful representation (see People v Turner, 5 NY3d 476,480 ). The contention that defense counsel's lack of understanding of the DNA evidence rendered him incapable of providing proper plea advice concerns matters outside the record on appeal, and is belied by what the record does contain. As noted above, aside from the single erroneous comment in his opening statement, 16 the remainder of defense counsel's representation in regards to the DNA evidence reflected a full understanding of the science and the significance of the evidence (427-433). The matters outside the record on appeal would more appropriately be addressed by way of a motion pursuant to CPL article 440 (People v. Frazier, 63 A.D.3d 1633 [4th Dept 2009], lv denied 12 NY3d 925 ). C. Alleged prosecutorial misconduct Any improper statements made by the prosecutor were not so egregious or pervasive as to deprive defendant of a fair trial, and defense counsel's failure to object to the allegedly improper comments did not constitute ineffective assistance of counsel. During cross-examination of defendant, the prosecutor asked defendant whether he gave the police an explanation for the items found at his feet in response to his testimony that he was being "railroaded" ( 495). The trial court was quick to give a curative instruction to the jury, "Ladies and gentlemen, just one point. The District Attorney asked the defendant if he gave an explanation to the police of why certain things were found at his feet. The defendant was under no obligation to give any explanations whatsoever and you cannot hold that against him, the fact that he did not give an explanation to the police. If something was said to the police, you could consider that, but the fact that he did not say things to the police is not a part of this case and you can't consider that in your deliberations." ( 495-496) It is unclear from the record whether the trial court gave that instruction sua sponte, or in response to a request from defense counsel, but the court did ask 17 defense counsel if he was satisfied with the curative instruction (496). While two other questions about whether the prosecution witnesses had lied, about a chapstick and the camera, were arguably improper, the conduct was not repeated or inflammatory (484, 485). Contrary to defendant's assertion, the prosecutor did not state that his testimony was "a lie" (App Br, 50); she stated on summation: "(w]e quickly found out that [the false name that defendant had given to police] was a lie," which constituted fair comment on the evidence (528). The prosecutor's attempt to refresh defendant's memory about a prior felony conviction was not improper, and, in any event, the trial court limited her inquiry ( 494 ). While the prosecutor's comment on summation that defendant was previously convicted of burglary in the second degree was not supported by his testimony, the conduct was limited and, again, the trial court instructed the jury to disregard comments of such a nature (532, 546). Based on this, defense counsel's failure to object to the aforementioned comments did not rise to the level of ineffective assistance of counsel (see People v Koonce, 111 AD3d 1277, 1278- 1279 [4th Dept 2013]). D. Defendant's predicate status and sentencing Defendant was sentenced, as a second violent felony offender, to concurrent 18 determinate tenns of 15 years of incarceration with five years of postrelease supervision (583). Prior to imposing sentence, the court asked defendant if he had any constitutional objections with respect to a prior burglary in the second degree conviction (577-578). Defendant admitted that he was the same Leroy Carver and stated that he had no objection to Judge Egan signing the certificate adjudicating him a second violent felony offender (578). Defense counsel's comment about pending appeals notwithstanding (578), there is nothing in the record to support defendant's claim that defense counsel failed to infonn him of the right to challenge the constitutionality of his prior conviction, or that counsel could not provide meaningful assistance with respect to that right (App Br, 54). Thus, the allegation that defense counsel failed to properly advise defendant on this issue appears to be "based on matters outside the record on appeal" and should therefore be raised in a CPL 440.10 motion (People v Roman, 107 AD3d 1441, 1443 [4th Dept 2013], lv denied 21 NY3d 1045 ). With respect to defense counsel's alleged failure to advocate for a more favorable sentence, counsel's representation at sentencing was not deficient. Prior to counsel speaking, defendant reiterated that he had no knowledge of the burglaries and no ownership of the jacket that he was found wearing, and, plainly, that he "didn't do anything" (581 ). Defense counsel then added very little, noting 19 that Supreme Court had heard the trial and had been aware of the defense's position throughout the case (582). His comments were reasonable in light of defendant's own words and certainly did not make the proceeding "a mockery of justice" (People v Brown, 7 NY2d 359, 361 ; see also People v Bruce, 57 AD2d 1024, 1024 [3rd Dept 1977]). In sum, based on the foregoing discussion, it is evident that, "viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, defendant received meaningful representation" (Roman, 107 AD3d at 1443). 20 Scott Myles, of Counsel July, 2015 CONCLUSION The judgment of conviction should be affirmed. 21 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney BY: SCOTT MYLES Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION LEROY CARVER, Defendant-Appellant. I, SCOTT MYLES, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: July 31, 2015 SCOTI MYLES, ESQ. STATEOFNEWYORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- LEROY CARVER, Defendant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 31st day of July, 2015, deponent served three copies of Brief for Respondent upon Janet Somes, Esq. Assistant Public Defender, attorney for defendant in this action at 10 North Fitzhugh Street, Rochester, New York 14614, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 31st day of July, 2015.