PEOPLE v. PEREZ

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

The PEOPLE of the State of New York, Respondent, v. Jose R. PEREZ, Defendant-Appellant.

Decided: November 13, 2009

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, CARNI, AND GREEN, JJ. Steven J. Getman, Ovid, for Defendant-Appellant. Jose R. Perez, Defendant-Appellant pro se. Richard E. Swinehart, District Attorney, Waterloo (John A. Cirando of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ) and attempted assault in the second degree (§§ 110.00, 120.05[2] ).   We reject the contention of defendant that he was denied his statutory right to testify before the grand jury and thus that County Court erred in denying his motion to dismiss the indictment on that ground (see generally People v. Smith, 18 A.D.3d 888, 796 N.Y.S.2d 655, lv. denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675).   There is no evidence in the record that defendant or his attorney gave the requisite written notice to the District Attorney that defendant intended to testify before the grand jury (see CPL 190.50[5][a] ). To the extent that defendant contends that he was denied effective assistance of counsel on the ground that his attorney failed to effectuate his intent to testify, we conclude that there is no indication in the record that defendant conveyed or attempted to convey his wish to testify to his attorney (see People v. Williams, 301 A.D.2d 669, 754 N.Y.S.2d 338, lv. denied 100 N.Y.2d 544, 763 N.Y.S.2d 10, 793 N.E.2d 424).   In any event, even if defendant had informed his attorney of his wish to testify, “an attorney's failure to secure a defendant's right to testify before the grand jury, without more, does not establish ineffective assistance of counsel or require reversal” (People v. Rojas, 29 A.D.3d 405, 405-406, 814 N.Y.S.2d 624, lv. denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288, citing People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845).   Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the third degree 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), we further conclude that the verdict convicting defendant of that crime 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).

 We reject defendant's further contention that the court erred in admitting testimony concerning prior threats made by defendant to the victim.   The evidence was relevant to establish defendant's motive (see People v. Mosley, 55 A.D.3d 1371, 1372, 864 N.Y.S.2d 622, lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562), as well as to provide background information concerning the prior relationship between defendant and the victim (see People v. Meseck, 52 A.D.3d 948, 950, 860 N.Y.S.2d 263).  “Unlike evidence of general criminal propensity, evidence that a particular victim was the focus of a defendant's continuing aggression may be highly relevant” (People v. Ebanks, 60 A.D.3d 462, 462, 874 N.Y.S.2d 111;  see People v. Hanson, 30 A.D.3d 537, 818 N.Y.S.2d 128, lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 778, 857 N.E.2d 73).

 Defendant also contends that the cumulative effect of prosecutorial misconduct on summation deprived him of a fair trial.   Inasmuch as defendant failed to object to any of the prosecutor's allegedly inappropriate remarks, his contention is unpreserved for our review (see 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), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant's constitutional challenge to the persistent felony offender statute is not properly before us, inasmuch as there is no indication in the record that the Attorney General was given the requisite notice of that challenge (see Executive Law § 71[3];  People v. Schaurer, 32 A.D.3d 1241, 820 N.Y.S.2d 827).   In any event, that contention is likewise unpreserved for our review (see People v. Phillips, 56 A.D.3d 1168, 1169, 867 N.Y.S.2d 633, lv. denied 11 N.Y.3d 928, 874 N.Y.S.2d 14, 902 N.E.2d 448), and it is without merit (see People v. Quinones, 12 N.Y.3d 116, 879 N.Y.S.2d 1, 906 N.E.2d 1033;  see generally People v. Rivera, 5 N.Y.3d 61, 66-68, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473).   We conclude that the court properly sentenced defendant as a persistent felony offender based upon his criminal history (see People v. O'Connor, 6 A.D.3d 738, 740-741, 775 N.Y.S.2d 98, lv. denied 3 N.Y.3d 639, 645, 782 N.Y.S.2d 410, 416, 816 N.E.2d 200, 206), and that the sentence is not unduly harsh or severe.

The remaining contentions of defendant are raised in his pro se supplemental brief.   Defendant failed to preserve for our review his contentions with respect to the composition of the jury pool (see CPL 270.10[2] ), and the court's alleged failure to administer the oath of truthfulness to prospective jurors (see People v. Hampton, 64 A.D.3d 872, 877, 883 N.Y.S.2d 338, lv. denied 13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441;  People v. Dickens, 48 A.D.3d 1034, 1034, 849 N.Y.S.2d 837, lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to the crimes of criminal possession of a weapon in the third degree and attempted assault in the second degree (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: