PEOPLE v. JACKSON (2025)

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered July 1, 2019, as amended September 4, 2019, convicting defendant, after a jury trial, of criminal contempt in the second degree and tampering with a witness in the fourth degree, and sentencing him to concurrent terms of 364 days, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2024]).  Defendant, during his testimony, admitted to sending letters to the complainant, in violation of the order of protection, in an effort to dissuade her from testifying, and defense counsel acknowledged the same in his summation.

Defendant did not preserve his contentions that the counts charging second-degree criminal contempt and fourth-degree witness tampering were duplicitous (see People v. Maldonado, 177 A.D.3d 554, 554, 114 N.Y.S.3d 354 [1st Dept. 2019], lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 273, 142 N.E.3d 1175 [2020]), and we decline to review them in the interest of justice.  As the Court of Appeals has held, “allow[ing] an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse” because it would permit a defendant to “obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it” (People v. Becoats, 17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011], cert denied 566 U.S. 964, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012]).

Defendant's claims of ineffective assistance of counsel, based on his trial counsel's failure to object to certain arguments he raises on appeal, are unreviewable on direct appeal and must be raised in a CPL 440.10 motion (see e.g. People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).  In any event, counsel cannot be ineffective for failing to raise an “argument that has little or no chance of success” (People v. Flowers, 28 N.Y.3d 536, 541, 46 N.Y.S.3d 497, 68 N.E.3d 1228 [2016] [internal quotation marks omitted]).

Defendant's contention that he was unduly prejudiced by the court's summary of the factual allegations in its preliminary remarks to the venire, and by the remarks made by the prosecutor during her opening statement, are unpreserved (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  see also People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266 [1996]), and we decline to review them in the interest of justice.  Defendant's “argument that the alleged defects in the instructions constituted a mode of proceedings error is unavailing” (People v. Mason, 213 A.D.3d 531, 534, 184 N.Y.S.3d 26 [1st Dept. 2023], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 712, 211 N.E.3d 1165 [2023];  see also People v. Collins, 99 N.Y.2d 14, 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 [2002]).  As an alternative holding, we find no basis for reversal.  The prosecutor's remarks to the jury, viewed in light of the court's extensive limiting instructions, were not unduly prejudicial.