PEOPLE v. GAMBLE (2020)

Judgment, Supreme Court, Bronx County (Margaret Clancy, J.), rendered November 13, 2013, convicting defendant, after a jury trial, of murder in the second degree and attempted assault in the second degree, and sentencing him to an aggregate term of 261/313 years to life, and order, same court and Justice, entered on or about December 20, 2017, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The court properly denied, without a hearing, defendant pro se's CPL 440.10 motion and appellate counsel's supplemental CPL 440.10 motion asserting ineffective assistance of counsel.  Defendant argues that there was no legitimate strategic reason for pretrial counsel's consent, without first consulting defendant, to the People's untimely (see CPL 240.90) motion to compel a DNA sample.  Assuming that counsel's consent under these circumstances was objectively unreasonable, we find that defendant was not prejudiced under either the state or 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, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Independent of any DNA evidence, there was overwhelming evidence of defendant's guilt, including, among many other things, the presence of defendant's fingerprints at a location that unequivocally connected him to the crime (see People v. Lewis, 44 A.D.3d 422, 422–23, 843 N.Y.S.2d 72 [1st Dept. 2007], lv denied 9 N.Y.3d 1035, 852 N.Y.S.2d 21, 881 N.E.2d 1208 [2008]).  The court also providently exercised its discretion in determining that a hearing would serve no useful purpose, particularly in light of defendant's detailed submissions regarding his interactions with pretrial counsel, who was deceased.

The court providently exercised its discretion in precluding defendant from cross-examining a witness about an arrest that had resulted in a dismissal, because trial counsel had insufficient information to demonstrate that the charges were not dismissed on the merits, and thus failed to demonstrate a good faith basis for the inquiry (see People v. Padilla, 28 A.D.3d 365, 812 N.Y.S.2d 530 [1st Dept. 2006], lv denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 [2006]).  Counsel presented only unsupported speculation that the charges were dismissed on speedy trial grounds.  Moreover, based on information that the trial prosecutor received from the prosecutor who had handled the witness's case, it appeared that the dismissal may have been on the merits.  In any event, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).  We also find no violation of defendant's right to cross-examine witnesses (see Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986]).

The challenged portions of the prosecutor's summation do not warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–120, 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]).  Although the prosecutor's comments on the lack of an “innocent explanation” for certain evidence tended to shift the burden of proof, the court's curative instructions were sufficient to prevent any prejudice.  However, the prosecutor's arguments about defendant's failure to make a 911 call at the time of the incident, or to assert his innocence during a call to his mother after his flight, were inappropriate under the facts of the case, and the court should not have permitted the jury to consider them.  Nevertheless, these errors were harmless in light of the overwhelming evidence.

The court providently exercised its discretion in denying an adverse inference instruction regarding evidence rendered unavailable by the flooding of a storage facility by Hurricane Sandy (see e.g. People v. Daly, 140 A.D.3d 593, 594, 140 A.D.3d 593 [1st Dept. 2016]), and defendant's arguments to the contrary are unavailing.

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.

M—65 - People v. Gamble

Motion for an adjournment and permission to file a pro se supplemental reply brief, denied.