People v. Gelling

• Decision Date: 25 July 2018
• Docket Number: 801,12–01622
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph GELLING, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1489

82 N.Y.S.3d 679

The PEOPLE of the State of New York, Respondent,

v.Joseph GELLING, Defendant–Appellant.

801

12–01622

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

Entered: July 25, 2018

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOSEPH GELLING, DEFENDANT–APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered June 19, 2012. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, criminal possession of a weapon in the second degree, criminal mischief in the fourth degree, petit larceny and criminal possession of stolen property in the fifth degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree ( Penal Law § 140.25[2] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Addressing first defendant's contentions in his main brief, we conclude that defendant was not denied effective assistance of counsel. Defendant contends that defense counsel was ineffective in failing to call an expert to testify regarding the potency of the alcoholic beverage that defendant admitted to drinking on the night of the incident in support of an intoxication defense. That contention lacks merit. " ‘Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence’ " ( People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815 [4th Dept. 2001], lv denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403 [2001] ). Contrary to defendant's contention, expert testimony was not required to establish an intoxication defense, and "defendant now offers little more than speculative assertions that an expert's testimony would have supported it" ( People v. Muller, 57 A.D.3d 1113, 1114, 869 N.Y.S.2d 270 [3d Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ; see People v. King, 124 A.D.3d 1064, 1067, 1 N.Y.S.3d 569 [3d Dept. 2015], lv denied 25 N.Y.3d 1073, 12 N.Y.S.3d 625, 34 N.E.3d 376 [2015] ).

Defendant further contends that defense counsel was ineffective in failing to establish the meaning of a notation regarding his blood alcohol content that was apparently placed on a jail form when he was booked into the jail inasmuch as that information would have supported his intoxication defense. We reject that contention. It is well settled that, in order to establish that counsel was ineffective, defendant must " ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel's allegedly deficient conduct" ( People v. Bank, 129 A.D.3d 1445, 1447, 12 N.Y.S.3d 673 [4th Dept. 2015], affd 28 N.Y.3d 131, 42 N.Y.S.3d 651, 65 N.E.3d 680 [2016], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Anwar, 151 A.D.3d 1628, 1629, 57 N.Y.S.3d 271 [4th Dept. 2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 [2017] ). There is no evidence demonstrating that the notation indicated that defendant was intoxicated, and indeed it could be interpreted to indicate that he was sober enough to legally operate a motor vehicle. Consequently, we will not "second-guess whether [the] course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" ( People v. Satterfield, 66 N.Y.2d 796, 799–800, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). Here, "the evidence, the law, and the circumstances of [the] case, viewed in totality and as of the time of the representation, reveal that [defendant's] attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; see Satterfield, 66 N.Y.2d at 798–799, 497 N.Y.S.2d 903, 488 N.E.2d 834 ).

Defendant's contention, that he was deprived of effective assistance of counsel regarding his decision to reject a pretrial plea offer, "involves strategic discussions between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10" ( People v. Manning, 151 A.D.3d 1936, 1938, 59 N.Y.S.3d 229 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 135, 89 N.E.3d 525 [2017] ; see People v. Surowka, 103 A.D.3d 985, 986–987, 962 N.Y.S.2d 377 [3d Dept. 2013] ).

Defendant's further contention that Supreme Court committed a mode of proceedings error when it permitted the weapon that had been received in evidence to be provided to the jurors in response to a jury note without notifying counsel of that request lacks merit. In its charge, the court instructed the jury that they could request that certain exhibits, including the rifle and ammunition, be provided to them, and defense counsel did not object to that charge or request any supplemental instruction regarding the rifle or ammunition (see CPL 310.20[1] ). Therefore, when the jury sent a note requesting the rifle, it was not error for the court to provide that exhibit to them without further input from the parties (see People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996], superceded by statute on other grounds as stated in People v. Miller, 18 N.Y.3d 704, 706, 944 N.Y.S.2d 433, 967 N.E.2d 656 [2012] ; People v. Black, 38 A.D.3d 1283, 1285–1286, 832 N.Y.S.2d 375 [4th Dept. 2007], lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 [2007] ). To the contrary, the jury's request "was nothing more than an inquiry of a ministerial nature ..., unrelated to the substance of the verdict ... As a result, the judge was not required to notify defense counsel nor provide them with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution" ( People v. Ochoa, 14 N.Y.3d 180, 188, 899 N.Y.S.2d 66, 925 N.E.2d 868 [2010] ).

We reject defendant's contention that the court erred in denying his motion to dismiss the indictment pursuant to CPL 210.35(4) on the ground that the People failed to provide him with reasonable notice of the grand jury proceedings pursuant to CPL 190.50(5)(a). " CPL 190.50(5)(a) does not mandate a specific time period for notice; rather, ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with [defense] counsel and decide whether to testify before a [g]rand [j]ury" ( People v. Sawyer, 96 N.Y.2d 815, 816, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001] ). Here, the record establishes that the People gave defendant and his attorney 1½ days' notice that the matter was to be presented to the grand jury, which constituted reasonable notice (see People v. Sawyer, 274 A.D.2d 603, 605–606, 711 N.Y.S.2d 45 [2000], affd 96 N.Y.2d 815, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001] ; People v. Lanier, 130 A.D.3d 1310, 1312, 15 N.Y.S.3d 241 [3d Dept. 2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ). Thus, we conclude that defendant had "sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify" ( People v. Quick, 48 A.D.3d 1223, 1223, 851 N.Y.S.2d 803 [4th Dept. 2008] ; see People v. Johnson, 46 A.D.3d 1384, 1385, 847 N.Y.S.2d 807 [4th Dept. 2007] ).

We also reject defendant's contention that he was denied the right to be present at a sidebar conference during the jury selection process. It is well settled that "reversal is not required [where, as here], because of the matter then at issue before the court or the practical result of the determination of that matter, the defendant's presence could not have afforded him or her any meaningful opportunity to affect the outcome" ( People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ; see generally People v. Gamble, 137 A.D.3d 1053, 1055, 27 N.Y.S.3d 226 [2d Dept. 2016] ).

We reject defendant's contention that the verdict is contrary to the weight of the evidence inasmuch as his intoxication prevented him from forming the requisite intent to commit certain crimes of which he was convicted, and from knowingly possessing the weapon. Upon reviewing the evidence "in light of the elements of the crime[s] as charged [to the jury] without objection by defendant" ( People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995] ; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence.

Penal Law § 15.25 states that "[i]ntoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged." Although there was evidence in this case that defendant consumed alcohol, and thus the jury could have concluded that he was intoxicated, "it is well settled that ‘[a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element[s] of intent’ " and knowledge ( People v. Williams, 158 A.D.3d 1170, 1171, 70 N.Y.S.3d 288 [4th Dept. 2018], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ; see People v. Principio, 107 A.D.3d 1572,...