People v. Bradford

Citation204 A.D.3d 1483,167 N.Y.S.3d 287
Decision Date29 April 2022
Docket Number76,KA 20-00768
Parties The PEOPLE of the State of New York, Respondent, v. Daniel BRADFORD, Defendant-Appellant.
CourtNew York Supreme Court Appellate Division

204 A.D.3d 1483
167 N.Y.S.3d 287

The PEOPLE of the State of New York, Respondent,
v.
Daniel BRADFORD, Defendant-Appellant.

76
KA 20-00768

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

Entered: April 29, 2022


THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

204 A.D.3d 1484

It is hereby ORDERED that the order so appealed from is affirmed.

Memorandum: Defendant was previously convicted after a jury trial of, inter alia, murder in the second degree ( Penal Law § 125.25 [1] ), aggravated criminal contempt (§ 215.52 [1]), and tampering with physical evidence (§ 215.40 [2]). On a prior appeal, we modified the judgment of conviction by "reversing that part convicting defendant of tampering with physical evidence and dismissing count six of the indictment, and by vacating the sentences imposed on the remaining counts" ( People v. Bradford , 118 A.D.3d 1254, 1254, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ), and we remitted the matter to County Court for resentencing ( id. ). Later, we denied defendant's motion for a writ of error coram nobis (

167 N.Y.S.3d 289

People v. Bradford , 137 A.D.3d 1633, 1633, 26 N.Y.S.3d 903 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ), and we affirmed the resentence ( People v. Bradford , 138 A.D.3d 1436, 1437, 29 N.Y.S.3d 729 [4th Dept. 2016], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ). Defendant thereafter moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 (1), and he now appeals by permission of this Court from an order denying that motion. We affirm.

Defendant contends that he was improperly compelled to wear a stun belt during his trial inasmuch as the court did not place on the record its findings showing that he needed such a restraint (see generally People v. Buchanan , 13 N.Y.3d 1, 4, 884 N.Y.S.2d 337, 912 N.E.2d 553 [2009] ). Although defendant established that he was forced to wear a stun belt, he failed to object to the use of the belt, and the improper use of a stun belt is not a mode of proceedings error (see People v. Cooke , 24 N.Y.3d 1196, 1197, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert denied 577 U.S. 1011, 136 S.Ct. 542, 193 L.Ed.2d 434 [2015] ). Therefore, "the failure to object to the stun belt's use means that ‘reversal would not have been required ’ on a direct appeal" and, as a result, even on the merits of the contention, "there is no basis upon which to vacate the judgment of conviction" pursuant to CPL 440.10 (1) ( People v. Osman , 174 A.D.3d 1477, 1480, 106 N.Y.S.3d 498 [4th Dept. 2019], lv denied 34 N.Y.3d 1080, 116 N.Y.S.3d 154, 139 N.E.3d 812 [2019]; see

204 A.D.3d 1485

People v. Schrock , 108 A.D.3d 1221, 1223-1224, 969 N.Y.S.2d 668 [4th Dept. 2013], lv denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013], reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014] ).

Contrary to defendant's further contention, he failed to establish that he was deprived of effective assistance of counsel by defense counsel's failure to raise the issue of the stun belt before the trial court (see Osman , 174 A.D.3d at 1480, 106 N.Y.S.3d 498 ; People v. Ashline , 124 A.D.3d 1258, 1261, 3 N.Y.S.3d 469 [4th Dept. 2015], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ; People v. Schrock , 99 A.D.3d 1196, 1196-1197, 951 N.Y.S.2d 819 [4th Dept. 2012] ). It is well settled that, in order " ‘[t]o prevail on a claim of ineffective assistance, [a] defendant[ ] must demonstrate that [he or she was] deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies [or] tactics ..., weighed long after the trial, does not suffice’ ... Thus, ‘it is incumbent on [a] defendant to demonstrate the absence of strategic or other legitimate explanations for defense counsel's allegedly deficient conduct’ " ( People v. Borcyk , 184 A.D.3d 1183, 1184, 125 N.Y.S.3d 517 [4th Dept. 2020] ; see e.g. People v. Kates , 162 A.D.3d 1627, 1630-1631, 78 N.Y.S.3d 600 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018], reconsideration denied 32 N.Y.3d 1173, 97 N.Y.S.3d 582, 121 N.E.3d 209 [2019] ; People v. Conway , 148 A.D.3d 1739, 1741, 50 N.Y.S.3d 739 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ). Defendant failed to make such a showing here. Inasmuch as defendant raises an ineffective assistance of counsel challenge under both the Federal and New York State Constitutions, "the claim is properly evaluated using the state standard" ( People v. Oliver [appeal No. 2], 162 A.D.3d 1722, 1723, 79 N.Y.S.3d 812 [4th Dept. 2018] ; see People v. Stultz , 2 N.Y.3d 277, 282-284, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; Conway , 148 A.D.3d at 1741, 50 N.Y.S.3d 739 ). That standard provides that "[a] single error may qualify as ineffective assistance,

167 N.Y.S.3d 290

but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Settles , 192 A.D.3d 1510, 1511, 143 N.Y.S.3d 479 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 545, 170 N.E.3d 419 [2021] ; People v. Johnson , 192 A.D.3d 1612, 1615, 143 N.Y.S.3d 763 [4th Dept. 2021] ). Here, in light of the lack of any evidence that the stun belt was visible to the jurors or that they were aware of its presence, we conclude that defendant failed to make a sufficient showing of egregiousness or that his right to a fair trial was compromised, and thus the court properly determined that defendant's allegations "do not rise to the level of ineffective assistance of counsel."

All concur except Lindley and Bannister, JJ., who dissent and vote to reverse in accordance with the following memorandum:

We respectfully dissent.

204 A.D.3d 1486

There is no dispute that defendant was required to wear a stun belt during his jury trial and that County Court failed to make the requisite finding that there was a "specifically identified...

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  • People v. Bubis
    • United States
    • New York Supreme Court Appellate Division
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    ...400 [1981] ). Defendant further contends that he was deprived of a fair trial by allegedly improper comments made by the prosecutor 167 N.Y.S.3d 287 during summation. Defendant's contention is without merit. "Reversal based on prosecutorial misconduct is mandated only 204 A.D.3d 1495 when t......
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    ...Lopez-Mendoza , 33 N.Y.3d 565, 572, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] [internal quotation marks omitted]; see People v. Bradford , 204 A.D.3d 1483, 1485, 167 N.Y.S.3d 287 [4th Dept. 2022] ). Here, defendant failed to make such a showing (see generally Bradford , 204 A.D.3d at 1485, 16......
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    ...challenged actions" (People v Lopez-Mendoza, 33 N.Y.3d 565, 572 [2019] [internal quotation marks omitted]; see People v Bradford, 204 A.D.3d 1483, 1485 [4th Dept 2022]). Here, defendant failed to make such a showing (see generally Bradford, 204 A.D.3d at 1485). Viewing the evidence, the law......
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