PEOPLE v. TORRES (2026)

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered November 13, 2012, convicting defendant, after a jury trial, of burglary in the second degree (three counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life;  and order, same court (Angela J. Badamo, J.), entered on or about June 10, 2024, which, after a hearing, denied his CPL 440.10 motion to vacate his conviction;  and order, same court and justice, entered on or about April 25, 2025, which denied his CPL 440.20 motion to set aside his sentence, unanimously affirmed.

The court properly precluded defendant from offering hearsay evidence of alleged third-party culpability, as it was not admissible either under his constitutional right to present a defense or as a declaration against penal interest (see People v DiPippo, 27 NY3d 127, 136–137 [2016];  People v Robinson, 89 NY2d 648, 650, 654–655 [1997] ).  Defendant failed to demonstrate that the declarant was unavailable;  defense counsel detailed some general efforts to locate him, but the prosecutor represented that the declarant was currently subject to parole supervision (see People v Coleman, 69 AD3d 430, 431 [1st Dept 2010], lv denied 15 NY3d 748 [2010] ).  However, defense counsel apparently never sought a subpoena or interviewed the declarant, so defendant did not show that the declarant was constitutionally unavailable (see People v Sanchez, 95 AD3d 241, 247–248 [1st Dept 2012], affd 21 NY3d 216 [2013] ).  Moreover, defendant did not establish “a reasonable possibility that the statement[s] might be true” or provide “persuasive assurances of trustworthiness” (see People v Thibodeau, 31 NY3d 1155, 1159 [2018] [internal quotation marks omitted] ).  Nothing connected the declarant to the crime other than the hearsay statements (see People v Settles, 46 NY2d 154, 168 [1978];  People v Ortiz, 81 AD3d 513, 514 [1st Dept 2011], lv denied 16 NY3d 898 [2011] ).

Several of defendant's present challenges to the prosecutor's summation are unpreserved, and we decline to consider them in the interest of justice (see People v Romero, 7 NY3d 911, 912 [2006] ).  As an alternative holding, we find that the prosecutor's summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133, 136 [1st Dept 1997], lv denied 91 NY2d 976 [1998] ).  As defendant elected to testify, the prosecutor permissibly urged the jury to consider whether his testimony made sense in light of other evidence (see id. at 143;  People v Garbez, 271 AD2d 277, 277 [1st Dept 2000], lv denied 95 NY2d 852 [2000] ).  Although the prosecutor used some colorful language to characterize defendant's testimony, those descriptions were part of a detailed, evidence-based discussion of defendant's credibility and did not exceed the bounds of rhetoric permissible in summation (see People v Scoggins, 227 AD2d 204, 205 [1st Dept 1996], lv denied 88 NY2d 994 [1996] ).  The prosecutor's brief discussion of “burglary 101” was responsive to defense counsel's arguments and “essentially asked the jurors to apply ordinary life experiences and common sense” (People v Martinez, 95 AD3d 462, 462 [1st Dept 2012], lv denied 19 NY3d 975 [2012] ).  The prosecutor permissibly commented on the strength of the evidence as to one of the charges (see People v Johnson, 166 AD2d 220, 220 [1st Dept 1990], lv denied 77 NY2d 907 [1991] ), and his remarks about defense counsel's summation did not impugn counsel's integrity or denigrate the theory of the defense (see People v LaPorte, 306 AD2d 93, 95 [1st Dept 2003] ).  Any minor improprieties in the prosecutor's summation were harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975];  People v D'Alessandro, 184 AD2d 114, 120 [1st Dept 1992], lv denied 81 NY2d 884 [1993] ).

The court properly delivered the standard Criminal Jury Instruction on recent and exclusive possession of stolen property (see CJI2d[NY] Recent, Exclusive Possession of Stolen Property;  see also People v Hill, 52 AD3d 380, 382 [1st Dept 2008] [“Although a trial judge is not obligated to use the standard jury instructions,” “each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created”] ).  This instruction properly conveyed to the jury that a permissible inference could be drawn that defendant knowingly possessed stolen property and further instructed:  “If you draw that inference, you must then decide whether or not defendant's guilty possession was the result of his commission of the burglary during which the property was stolen” (see People v Baskerville, 60 NY2d 374, 382–383 [1983];  see also People v Medina, 18 NY3d 98, 104 [2011] ).

We perceive no basis for reducing the sentence.

The motion court properly denied defendant's CPL 440.10 motion alleging ineffective assistance of trial counsel after conducting a “thorough evidentiary hearing,” and the record supports the court's findings of fact and conclusions of law (People v Davis, 78 AD3d 435, 436 [1st Dept 2010], lv denied 16 NY3d 742 [2011] ).  Defense counsel's failure to file a motion to suppress the physical evidence recovered from defendant's bedroom did not amount to constitutionally deficient performance under the circumstances, as the prosecutor consented to the hearing during pretrial proceedings, but the court declined to order a hearing on that issue after a bench conference (see People v Rivera, 71 NY2d 705, 709 [1988] ).  Defendant “also failed to establish any prejudice given the lack of a reasonable possibility that the suppression ruling would have been different if counsel had introduced the evidence or made the arguments that were at issue in the CPL 440.10 motion” (People v Hickman, 185 AD3d 407, 408 [1st Dept 2020], lv denied 35 NY3d 1094 [2020];  People v Patterson, 22 AD3d 228, 228 [1st Dept 2005], lv denied 6 NY3d 757 [2005] [“failure to file a timely suppression motion” did not prejudice the defendant as the trial evidence established that the motion “would have had no chance of success”] ).

Defendant's claim that he was improperly adjudicated a persistent violent felony offender in light of Erlinger v United States (602 US 821 [2024] ) is foreclosed by our decision in People v Young (— AD3d —, 2026 NY Slip Op 02883 [1st Dept 2026] ), accordingly, we affirm the motion court's denial of his CPL 440.20 motion.