PEOPLE v. JOHNSTON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. David JOHNSTON, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., SMITH, FAHEY, PERADOTTO, AND PINE, JJ. Gary A. Horton, Public Defender, Batavia (Bridget L. Field of Counsel), for Defendant-Appellant. David Johnston, Defendant-Appellant Pro Se.

On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of burglary in the second degree (Penal Law § 140.25[2] ) and one count of unlawful imprisonment in the second degree (§ 135.05), defendant contends that the conviction of burglary and unlawful imprisonment is not supported by legally sufficient evidence.   Defendant failed to preserve that contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Contrary to defendant's further contention, the verdict on the burglary counts is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant failed to preserve for our review his contentions that he was denied a fair trial when he appeared before the jury in prison-issued clothing and when he was required to wear a weighted boot, inasmuch as defendant merely noted his appearance for the record and neither formally objected nor requested any relief (see CPL 470.05[2];  see also People v. Rosado, 166 A.D.2d 544, 545, 560 N.Y.S.2d 825, lv. denied 77 N.Y.2d 843, 567 N.Y.S.2d 212, 568 N.E.2d 661).   In any event, defendant's contentions lack merit.   There is no evidence in the record that the clothing worn by defendant, although issued by the prison, “bore the markings of ‘prison garb’ ” (People v. Reid, 137 A.D.2d 844, 845, 525 N.Y.S.2d 307, lv. denied 71 N.Y.2d 901, 527 N.Y.S.2d 1010, 523 N.E.2d 318, quoting People v. Roman, 35 N.Y.2d 978, 978-979, 365 N.Y.S.2d 527, 324 N.E.2d 885;  see People v. Everson, 262 A.D.2d 1059, 694 N.Y.S.2d 252, lv. denied 94 N.Y.2d 903, 707 N.Y.S.2d 387, 728 N.E.2d 986).   Nor is there any evidence that the weighted boot was visible to the jury or identifiable as a leg restraint (see People v. Tascarella, 227 A.D.2d 888, 888-889, 643 N.Y.S.2d 277, lv. denied 89 N.Y.2d 867, 653 N.Y.S.2d 290, 675 N.E.2d 1243).

 Contrary to defendant's further contention, County Court's Sandoval ruling was not an abuse of discretion.  “The record establishes that the court properly balanced the probative value of the prior convictions against the potential for undue prejudice” (People v. Montgomery, 288 A.D.2d 909, 910, 732 N.Y.S.2d 389, lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405;  see People v. Williams, 56 N.Y.2d 236, 238-239, 451 N.Y.S.2d 690, 436 N.E.2d 1292).   We further conclude that defendant was not prejudiced by the admission of his mug shot in evidence inasmuch as the court informed the jury that the mug shot was taken at the time of his arrest for the charges at issue (see People v. Thiessen, 158 A.D.2d 737, 740, 550 N.Y.S.2d 944, mod. on other grounds 76 N.Y.2d 816, 559 N.Y.S.2d 970, 559 N.E.2d 664).   Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation.  “[B]y failing to object during the prosecutor's summation, defendant failed to preserve for our review his contention that remarks made during summation constituted prosecutorial misconduct that deprived him of a fair trial” (People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800;  see CPL 470.05[2];  People v. Soto, 2 A.D.3d 1401, 770 N.Y.S.2d 220, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 33, 808 N.E.2d 1292;  People v. Jackson, 291 A.D.2d 930, 737 N.Y.S.2d 899, lv. denied 98 N.Y.2d 677, 746 N.Y.S.2d 466, 774 N.E.2d 231).  “In any event, the prosecutor's comments were not so egregious as to deny defendant a fair trial” (People v. Crawford, 299 A.D.2d 848, 849, 749 N.Y.S.2d 447, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739, 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292;  see People v. Chatman, 281 A.D.2d 964, 966, 722 N.Y.S.2d 329, lv. denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84).

Contrary to the additional contentions of defendant, he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.   Finally, we have reviewed the additional contention raised by defendant in his pro se supplemental brief and conclude that it is without merit.

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

MEMORANDUM: