PEOPLE v. RICHARDS (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment that convicted him upon a jury verdict of, inter alia, attempted arson in the second degree (see Penal Law §§ 110.00, 150.15).  Defendant failed to preserve for our review his contention that County Court erred in failing to discharge a sworn juror (see People v. Dennis, 91 A.D.3d 1277, 1279, 937 N.Y.S.2d 496 [4th Dept. 2012], lv denied 19 N.Y.3d 995, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012];  see generally People v. Clark, 28 A.D.3d 1190, 1190, 815 N.Y.S.2d 387 [4th Dept. 2006] ).  Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see People v. Williams [James], 100 A.D.3d 1444, 1444, 953 N.Y.S.2d 536 [4th Dept. 2012], lv denied 20 N.Y.3d 1066, 962 N.Y.S.2d 617, 985 N.E.2d 927 [2013];  see generally People v. Adams, 222 A.D.2d 1124, 1124, 635 N.Y.S.2d 906 [4th Dept. 1995], lv denied 87 N.Y.2d 1016, 644 N.Y.S.2d 150, 666 N.E.2d 1064 [1996] ).  Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Bennett, 94 A.D.3d 1570, 1571–1572, 943 N.Y.S.2d 371 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

We also reject defendant's contention that he was denied effective assistance of counsel.  Defendant's assertion that defense counsel was ineffective in failing to retain a fire expert is unavailing because “defendant has not established that such expert testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence” (People v. Graham, 125 A.D.3d 1496, 1497, 3 N.Y.S.3d 864 [4th Dept. 2015], lv denied 26 N.Y.3d 1008, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] [internal quotation marks omitted] ).  We likewise reject defendant's assertion that defense counsel was ineffective in waiving opening and closing statements at the suppression hearing.  The omnibus motion set forth a cogent theory for suppression of the evidence, and defense counsel effectively cross-examined the People's witnesses at the hearing (see People v. Harris, 147 A.D.3d 1354, 1356–1357, 46 N.Y.S.3d 746 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 84 N.E.3d 973 [2017] ).  Also contrary to defendant's contention, defense counsel was not ineffective in failing to object with respect to the alleged bias of a sworn juror based on comments made by the court, after the People rested, in which the court acknowledged that it had known the juror personally.  Defendant failed to demonstrate “the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (People v. Swank, 109 A.D.3d 1089, 1090, 971 N.Y.S.2d 611 [4th Dept. 2013], lv denied 23 N.Y.3d 968, 988 N.Y.S.2d 575, 11 N.E.3d 725 [2014] [internal quotation marks omitted] ), particularly given that the record does not support defendant's allegation of juror bias.  Defendant's further contention that trial counsel was ineffective in failing to adequately explain to defendant his right to testify is based primarily on matters outside the record and must be raised pursuant to a CPL 440.10 motion (see generally People v. Streeter, 118 A.D.3d 1287, 1289, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] ).

Defendant also contends that he was deprived of his right to testify at trial.  Insofar as defendant contends that the court had an obligation to ensure that he knowingly waived his right to testify, defendant's contention lacks merit.  “The trial court has no obligation to inform a defendant of his or her right to testify or ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so” (People v. Cosby, 82 A.D.3d 63, 66, 916 N.Y.S.2d 689 [4th Dept. 2011], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ).  In any event, the record establishes that the court made an inquiry regarding defendant's decision not to testify and that defendant stated that the decision was his own.  To the extent that defendant contends that conversations with defense counsel otherwise deprived him of his right to testify, that contention is, as with defendant's related ineffective assistance claim, based primarily on matters outside the record and must be raised pursuant to a CPL 440.10 motion (see generally Streeter, 118 A.D.3d at 1289, 987 N.Y.S.2d 775).

Contrary to defendant's further contention, he was not deprived of a fair trial based on the court's limited questioning of witnesses.  A trial court “ ‘is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial,’ ” and there is no indication in the record that the court was biased against defendant (People v. Williams, 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013], quoting People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 422 N.E.2d 556 [1981] ).

Finally, the sentence is not unduly harsh or severe.