People v. Goss

• Citation: 646 N.Y.S.2d 397,229 A.D.2d 791
• Parties: The PEOPLE of the State of New York, Respondent, v. George F. GOSS, Appellant.
• Decision Date: 25 July 1996
• Court: New York Supreme Court — Appellate Division

Page 397

646 N.Y.S.2d 397

229 A.D.2d 791

The PEOPLE of the State of New York, Respondent, v. George F. GOSS, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 25, 1996.

Norberta Fuller Krupczak, Amsterdam, for appellant.

James E. Conboy, District Attorney (John N. Clo, of counsel), Fonda, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.

CARDONA, Presiding Justice.

Appeals (1) from a judgment of the County Court of Montgomery County (Aison, J.), rendered March 19, 1993, upon a verdict convicting defendant of the crimes of burglary in the second degree and criminal possession of stolen property in the fifth degree, and (2) from a judgment of said court, rendered March 19, 1993, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

On November 21, 1991, James Kilgore was arrested and charged with burglarizing an apartment located at 342 Division Street in the City of Amsterdam, Montgomery County. One of the tenants in the building had caught and apprehended Kilgore on that date while Kilgore was committing the burglary. According to the tenant, although he heard two male voices, he encountered and observed only Kilgore. After Kilgore's arrest, he named defendant as his accomplice. Kilgore also admitted committing a burglary on November 8, 1991 at 77 The Mall in Amsterdam and implicated defendant in that burglary as well.

Defendant was indicted on two counts of burglary in the second degree, grand larceny in the fourth degree, criminal mischief in the fourth degree and criminal possession of stolen property in the fourth degree. The charges arose out of the burglaries at 77 The Mall and 342 Division Street. In a separate indictment, defendant was also charged with another burglary in Amsterdam which took place on October 10, 1991.

A jury trial was held on the first indictment and defendant was convicted of two counts of burglary in the second degree and one count of criminal possession of stolen property in the fifth degree. Defendant moved to vacate both burglary convictions. County Court granted the motion only with respect to the 342 Division Street burglary, finding that Kilgore's accomplice testimony at trial had not been sufficiently corroborated. Defendant then withdrew his plea of not guilty on the second indictment and pleaded guilty to one count of attempted burglary in the second degree. He was sentenced as a second felony offender to concurrent indeterminate prison terms, the longest of which was 7 1/2 to 15 years. Defendant appeals both convictions.

Defendant first argues that the prosecutor improperly used his pretrial silence by eliciting testimony from a police officer that defendant remained silent when questioned by the police about the burglaries (see generally, People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933 [prosecution prohibited from using a defendant's pretrial silence to impeach a defendant's trial testimony]. Initially, we note that insofar as defense counsel never objected to the questioning, this issue has not been preserved for our review (see, CPL 470.05[2] ). In addition, because we find no significant probability that the exclusion of such testimony would have resulted in an acquittal, we find no basis to intervene in the interest of justice (see, CPL 470.15[3][c]; see also, People v. Dunn, 204 A.D.2d 919, 612 N.Y.S.2d 266, lv. denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224; cf., People v. Barber, 143 A.D.2d 450, 532 N.Y.S.2d 447). The same is true with respect to the police officer's testimony that, after remaining silent as to questioning about the burglaries, defendant agreed to talk to police about a murder and was willing to take a stress test, apparently to prove his innocence. In this regard, we note that defense counsel made a proper objection, which was sustained, and the jury was instructed to disregard the statement. Because defense counsel neither asked for further curative instructions nor moved for a mistrial, any error was not preserved for review (see, People v. Acevedo, 156 A.D.2d 569, 549 N.Y.S.2d 77, lv. denied 75 N.Y.2d 963, 556 N.Y.S.2d 248, 555 N.E.2d 620). Again, a review of the record provides no basis to exercise our interest of justice jurisdiction (see, People v. Dunavin, 173 A.D.2d 1032, 570 N.Y.S.2d 369, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417).

Defendant also argues that certain comments made by the prosecutor during summation deprived him of a fair trial. Defendant's arguments have not been preserved for review as he failed to object to the majority of the allegedly improper comments, and, in those instances where he did object, County Court sustained the objection and issued appropriate curative instructions. Defendant neither asked for further instructions nor requested a mistrial (see, People v. Carter, 227 A.D.2d 661, 641 N.Y.S.2d 908; People v. Esposito, 225 A.D.2d 928, 640 N.Y.S.2d 274). In any event, although some of the prosecutor's comments, including those impugning defense counsel's tactics, the references to defendant as a professional burglar and the portrayal of defendant as being found "hiding" in a closet when the police arrived to search his apartment, were not warranted (see, People v. Hamilton, 227 A.D.2d 669, 641 N.Y.S.2d 746), they were not so egregious, when viewed in the context of the whole summation, as to warrant a new trial (see, People v. Carter, supra; People v. Yates, 207 A.D.2d 567, 616 N.Y.S.2d 249, lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237). The prosecutor's remaining comments to which defendant now takes exception were either a fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564) or an acceptable response to defense counsel's summation (see, People v. Paulino, 187 A.D.2d 736, 590 N.Y.S.2d 532, lv. denied 81 N.Y.2d 792, 594 N.Y.S.2d 739, 610 N.E.2d 412).

Defendant next argues that he was denied the effective assistance of counsel because of...