PEOPLE v. CARPENTER (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Doyle, J.), rendered March 6, 2006, convicting him of reckless endangerment in the first degree, unauthorized use of a motor vehicle in the third degree, criminal contempt in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Under the Federal and New York State Constitutions, a defendant in a criminal proceeding has a due process right to testify in his own defense (see United States v. Dunnigan, 507 U.S. 87, 96, 113 S.Ct. 1111, 122 L.Ed.2d 445;  Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37;  People v. Washington, 145 A.D.2d 670, 536 N.Y.S.2d 812).   In Brown v. Artuz, 124 F.3d 73, 74, cert. denied 522 U.S. 1128, 118 S.Ct. 1077, 140 L.Ed.2d 135, the United States Court of Appeals for the Second Circuit held that “the decision whether a defendant should testify at trial is for the defendant to make,” and “that trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right.”

 Contrary to the defendant's contention, his attorney did not preclude him from testifying in his own defense.   Ultimately, after a colloquy among defense counsel, the court, and the defendant, the defendant voluntarily chose to follow the advice of his attorney and not testify (cf. People v. Mason, 263 A.D.2d 73, 75, 706 N.Y.S.2d 1).

 The defendant's challenge to the legal sufficiency of the evidence regarding the conviction of reckless endangerment in the first degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. McGrath, 195 A.D.2d 831, 832-833, 601 N.Y.S.2d 200).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt is not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant failed to preserve for appellate review his contention that he was illegally sentenced as a second felony offender based on the People's failure to file a statement pursuant to CPL 400.21(2) (see People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Simpson, 35 A.D.3d 1182, 1183, 826 N.Y.S.2d 547).   In any event, “[t]he People's failure to file a predicate statement was harmless, and remanding for filing and resentencing would be futile and pointless” (People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338) as the trial court was apprised of the defendant's prior conviction, and the defendant was provided with reasonable notice and an opportunity to be heard.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).