PEOPLE v. SCOTT

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Darryl S. SCOTT, Defendant-Appellant.

Decided: September 22, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, SMITH, AND GREEN, JJ. Joseph T. Jarzembek, Buffalo, for Defendant-Appellant. Darryl S. Scott, Defendant-Appellant Pro Se. Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ) and criminal mischief in the fourth degree (§ 145.00[1] ), defendant contends that he was denied effective assistance of counsel as a result of his initial defense counsel's conflict in representation and the failure of his initial defense counsel to make certain pretrial motions.   We discern no irreconcilable conflict inherent in initial defense counsel's simultaneous representation of defendant and codefendant during pretrial proceedings.   Moreover, as we noted on the appeal of codefendant, “[t]he failure of [defense] counsel ‘to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel’ ” (People v. McQueen, 307 A.D.2d 765, 765-766, 762 N.Y.S.2d 562, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629).   Here, “defendant has not demonstrated the absence of strategic or other legitimate explanations for [his initial defense] counsel's failure to pursue colorable claims” (id. at 766, 762 N.Y.S.2d 562 [internal quotation marks omitted] ).   Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Contrary to defendant's contention, the verdict finding defendant guilty of burglary but not guilty of grand larceny in the fourth degree is not repugnant (see People v. Mainella, 2 A.D.3d 1330, 769 N.Y.S.2d 802, lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921, 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575;  People v. Carrion, 282 A.D.2d 543, 722 N.Y.S.2d 888, lv. denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117;  People v. Reckart, 163 A.D.2d 846, 558 N.Y.S.2d 375).   In addition, there was no Brady violation inasmuch as the evidence in question was not exculpatory (see generally People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915).   Also contrary to defendant's contention, the prosecutor had the requisite good faith basis for seeking to impeach the credibility of a defense witness by questioning him with respect to prior criminal convictions (see People v. Bailey, 257 A.D.2d 432, 433, 682 N.Y.S.2d 583, lv. denied 93 N.Y.2d 966, 695 N.Y.S.2d 51, 716 N.E.2d 1096;  see also People v. Hampton, 211 A.D.2d 464, 621 N.Y.S.2d 58, lv. denied 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629), and defendant was not deprived of a fair trial by prosecutorial misconduct on summation (see People v. Torturica [Appeal No. 2], 23 A.D.3d 1040, 1041, 805 N.Y.S.2d 750, lv. denied 6 N.Y.3d 819, 812 N.Y.S.2d 458, 845 N.E.2d 1289;  People v. Peckham, 8 A.D.3d 1121, 778N.Y.S.2d 629, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 18, 817 N.E.2d 836).   County Court did not abuse its discretion in denying defendant's severance motion (see People v. Chalk, 199 A.D.2d 813, 606 N.Y.S.2d 386;   People v. Neiva, 161 A.D.2d 1173, 558 N.Y.S.2d 866, lv. denied 76 N.Y.2d 895, 561 N.Y.S.2d 557, 562 N.E.2d 882).

Finally, the court did not err in denying defendant's Batson challenge.   The court properly determined that the People articulated a race-neutral explanation for peremptorily challenging the prospective juror in question (see People v. Ball, 11 A.D.3d 904, 782 N.Y.S.2d 228, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976, 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54;  People v. Linen, 5 A.D.3d 1022, 1022-1023, 773 N.Y.S.2d 330;  People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919), and defendant failed to meet his burden of establishing that the explanation was pretextual (see Harris, 1 A.D.3d at 882, 767 N.Y.S.2d 725;  People v. Welch, 298 A.D.2d 903, 747 N.Y.S.2d 843, lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91).

We have considered the contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.

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

MEMORANDUM: