PEOPLE v. PEARSON (2018)

Judgment, Supreme Court, New York County (Gregory Carro, J. at counsel application;  Ruth Pickholz, J. at jury trial and sentencing), rendered March 25, 2016, as amended July 11, 2016, convicting defendant of burglary in the third degree, and sentencing him, as a second felony offender, to a term of three to six years, unanimously affirmed.

The verdict was supported by legally sufficient evidence and 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] ).  In this burglary of a store, the evidence amply supported the jury's conclusion that defendant knowingly entered the premises unlawfully.  A trespass notice, signed by defendant, clearly and unequivocally informed him that he was prohibited from entering the store again (see People v. Ramnarain, 52 A.D.3d 348, 349, 861 N.Y.S.2d 6 [1st Dept. 2008], lv denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105 [2008];  People v. Polite, 302 A.D.2d 227, 753 N.Y.S.2d 722 [1st Dept. 2003], lv denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296 [2003] ).  The evidence also showed that defendant intended to commit a crime in the store, because his conduct clearly evinced an attempt to steal merchandise (see e. g. People v. Brunson, 294 A.D.2d 104, 740 N.Y.S.2d 866 [1st Dept. 2001], lv denied 98 N.Y.2d 695, 747 N.Y.S.2d 413, 776 N.E.2d 2 [2002] ).

When viewed in context, an isolated remark during the prosecutor's summation, to which defendant objected on the ground that the prosecutor was “testifying,” constituted permissible comment on the evidence.  Defendant did not preserve any other challenges to the summation, and we decline to review them in the interest of justice.  As an alternative holding, we conclude that the challenged remarks generally constituted fair comment on the evidence, including the drawing of reasonable inferences, and were responsive to defendant's summation.  To the extent that some of the comments were better left unsaid, they were not so pervasive or egregious as to deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D' Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they principally involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffective assistance claims may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).  Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or had a reasonable probability of affecting the outcome of the case, including the length of the sentence.

Under the totality of circumstances, defendant's unelaborated, eve-of-trial request for yet another attorney, made a few months after a prior request had been granted, did not require the court to make a minimal inquiry (see People v. Porto, 16 N.Y.3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010];  People v. Sides, 75 N.Y.2d 822, 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).