People v. Burke

• Decision Date: 26 August 2021
• Docket Number: 581 KA 19-00545
• Citation: 2021 NY Slip Op 04857
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MILTON BURKE, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2021 NY Slip Op 04857

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MILTON BURKE, DEFENDANT-APPELLANT.

No. 581 KA 19-00545

Supreme Court of New York, Fourth Department

August 26, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DONALD R. GERACE OF COUNSEL), FOR DEFENDANT-APPELLANT.

MILTON BURKE, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), rendered February 28, 2019. The judgment convicted defendant upon a jury verdict of attempted assault in the first degree and criminal possession of a weapon in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). We affirm.

Addressing first defendant's contentions in his main brief, we reject his contention that County Court erred in granting the People's motion to amend the bill of particulars to list one of the precise locations where defendant allegedly possessed a firearm. Because "the amendment was made by the People prior to jury selection[, ] [it] was... statutorily permissible" (People v Wright, 13 A.D.3d 803, 804 [3d Dept 2004], lv denied 4 N.Y.3d 857 [2005]; see CPL 1.20 [11]; 200.95 [8]). Additionally, inasmuch as the amendment merely narrowed the description of the location where the crime occurred, it did not expand or alter the People's theory of the case, cause defendant undue prejudice, or demonstrate that the People acted in bad faith by seeking the amendment (see Wright, 13 A.D.3d at 804; People v Lewis, 277 A.D.2d 1010, 1011 [4th Dept 2000], lv denied 96 N.Y.2d 736 [2001]).

Defendant's contention that the court's ruling precluding him from eliciting certain testimony from one of his own witnesses violated his constitutional right to confrontation is unpreserved for our review because defendant did not object on that basis at trial (see People v Liner, 9 N.Y.3d 856, 856-857 [2007], rearg denied 9 N.Y.3d 941 [2007]; People v Garcia, 2 A.D.3d 321, 322 [1st Dept 2003], lv denied 2 N.Y.3d 740 [2004]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). To the extent that defendant contends that the court erred in precluding him from eliciting that testimony on the basis of hearsay, we conclude that the record is inadequate to permit appellate review of that contention (see generally People v Dye, 78 A.D.3d 1607, 1608 [4th Dept 2010], lv denied 16 N.Y.3d 743 [2011]; People v Belair, 226 A.D.2d 1105, 1106 [4th Dept 1996]).

We reject defendant's contention that he was deprived of a fair trial because the prosecutor improperly acted as an unsworn witness on summation when he described the characteristics of and sound made by a.45 caliber firearm inasmuch as that isolated comment was not so egregious as to deny defendant a fair trial, especially given the instruction to the jury that an attorney's summation is not evidence (see generally People v Ashwal, 39 N.Y.2d 105, 109-111 [1976]; People v Warmley, 179 A.D.3d 1537, 1538 [4th Dept 2020], lv denied 35 N.Y.3d 945 [2020]; People v Fick, 167 A.D.3d 1484, 1485-1486 [4th Dept 2018], lv denied 33 N.Y.3d 948 [2019]).

By objecting to the...