The People, etc., respondent, v. Richard Collins, appellant.

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

The People, etc., respondent, v. Richard Collins, appellant.

2009–11223 (Ind.No. 1820/08)

Decided: August 07, 2013

WILLIAM F. MASTRO, J.P. PLUMMER E. LOTT LEONARD B. AUSTIN SANDRA L. SGROI, JJ. Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Emil Bricker of counsel), for respondent.

Argued—December 13, 2012


Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered November 10, 2009, convicting him of robbery in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court violated CPL 310.30 and deprived him of a fair trial by failing to meaningfully respond to a certain jury note is unpreserved for appellate review (see CPL 470.05[2];  People v. Ramirez, 15 NY3d 824, 825;  People v. Starling, 85 N.Y.2d 509, 516;  People v. Walston, 101 AD3d 1156, 1157;  People v. Battle, 15 AD3d 413, 414).   In any event, the contention is without merit (see People v. Smith, 57 AD3d 579, 580;  People v. Albanese, 45 AD3d 691, 692;  People v. Bobadilla, 254 A.D.2d 493, 494;  People v. Davis, 247 A.D.2d 404;  People v. Santiago, 231 A.D.2d 652, 652;  People v. Sanders, 227 A.D.2d 506;  People v. Elie, 150 A.D.2d 719, 720).

The defendant's contention that the prosecutor improperly cross-examined him regarding his prearrest silence and used his prearrest silence to impeach his credibility during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Loaiza, 201 A.D.2d 587, 587–588).   In any event, any error resulting from the prosecutor's use of the defendant's prearrest silence for impeachment purposes was harmless, since the evidence of the defendant's guilt was overwhelming, and there was no reasonable possibility that the error might have contributed to the conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242).

Contrary to the defendant's contention, the Supreme Court properly refused to admit the criminal complaint into evidence as a prior inconsistent statement of a complainant absent proof that the complainant signed, prepared, or verified the accuracy of the complaint (see People v. Bernardez, 85 AD3d 936, 937;  People v. White, 272 A.D.2d 239, 240;  People v. Gooding, 202 A.D.2d 375, 376).   Since the defendant never objected to the exclusion of the complaint on any constitutional ground, his contentions that the ruling deprived him of his constitutional rights to confront the witnesses against him and to present a defense are unpreserved for appellate review (see CPL 470.05[2];  People v. Olibencia, 45 AD3d 607, 608).   In any event, the contentions are without merit.

Defense counsel's failure to raise certain objections did not constitute ineffective assistance of counsel (see People v. Stultz, 2 NY3d 277, 287;  People v. Rivera, 71 N.Y.2d 705, 709).

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

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MASTRO, J.P., LOTT, AUSTIN and SGROI, JJ., concur.


Aprilanne Agostino

Clerk of the Court

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