People v. Harris

• Decision Date: 11 March 2022
• Docket Number: 1038 KA 18-00613
• Citation: 2022 NY Slip Op 01699
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TERRY HARRIS, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2022 NY Slip Op 01699

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TERRY HARRIS, DEFENDANT-APPELLANT.

No. 1038 KA 18-00613

Supreme Court of New York, Fourth Department

March 11, 2022

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.

Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered September 7, 2017. The judgment convicted defendant, upon a jury verdict, of aggravated criminal contempt.

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

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of aggravated criminal contempt (Penal Law § 215.52 [1]). We affirm.

Contrary to defendant's contention, the conviction is supported by legally sufficient evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Defendant's contention that the People violated their discovery obligations with respect to the protective order itself is without merit (see People v Mack, 193 A.D.2d 439, 439 [1st Dept 1993], lv denied 84 N.Y.2d 829 [1994]; see generally People v Ranghelle, 69 N.Y.2d 56, 63 [1986]; People v Nichols, 163 A.D.3d 39, 48 [4th Dept 2018]). Contrary to defendant's further contention, County Court was not obligated to impose a sanction for the People's belated disclosure of a short audio file inasmuch as defense counsel "received the materials at a time when they were still useful to [the] defense" (People v Martinez, 198 A.D.2d 67, 67 [1st Dept 1993], lv denied 82 N.Y.2d 927 [1994]; see People v Collins, 203 A.D.2d 888, 889 [4th Dept 1994], lv denied 85 N.Y.2d 861 [1995]). Defendant's claims of prosecutorial misconduct on summation are unpreserved for appellate review (see People v Haynes, 104 A.D.3d 1142, 1144 [4th Dept 2013], lv denied 22 N.Y.3d 1156 [2014]).

The record "falls short of establishing conclusively the merit of... defendant's claim" that defense counsel was ineffective for failing to alert him, during plea negotiations, to the possibility of persistent felony offender sentencing after trial (People v Lopez-Mendoza, 33 N.Y.3d 565, 573 [2019]). In particular, the unsworn assertions by defendant and defense counsel on that issue raise credibility issues requiring a CPL 440.10 motion (see generally id. at 572-573). We thus cannot decide that claim on direct appeal, i.e., "[w]ithout the benefit of additional facts that might [be] developed after an appropriate postconviction motion" (People v Denny, 95 N.Y.2d 921, 923 [2000]; see People v Spotards, 23 A.D.3d 586, 587 [2d Dept 2005], lv denied 7 N.Y.3d 763 [2006]).

Contrary to defendant's further contention, defense counsel's failure to call an expert witness at trial does not constitute ineffective assistance because defendant has not demonstrated "that such testimony... would have assisted the jury in its determination or that he was prejudiced by its absence" (People v Gonzales, 145 A.D.3d 1432, 1433 [4th Dept 2016], lv denied 29 N.Y.3d 1079 [2017] [internal quotation marks omitted]). Nor was defense counsel ineffective for not moving to reopen the suppression hearing inasmuch as no "additional pertinent facts [were] discovered [at trial] which would have affected the [suppression] determination" (People v Xing Chen, 117 A.D.3d 762, 763 [2d Dept 2014], lv denied 24 N.Y.3d 1090 [2014]; see generally People v Huffman, 41 N.Y.2d 29, 34-35 [1976]). Contrary to defendant's further contention, defense counsel was not ineffective for failing to present mitigating evidence at the persistent felony offender hearing inasmuch as defendant has not demonstrated that any genuinely mitigating evidence existed (see People v Rosario, 157 A.D.3d 988, 995 [3d Dept 2018], lv denied 31 N.Y.3d 1121 [2018]). We have considered and rejected defendant's remaining allegations of ineffective assistance of counsel (see generally People v Baldi, 54 N.Y.2d 137, 146-152 [1981]).

Contrary to defendant's further contention, the court properly exercised its discretion in sentencing him as a persistent felony offender (see People v Morris, 21 A.D.3d 251, 251 [1st Dept 2005], lv denied 5 N.Y.3d 831 [2005]; see generally Penal Law § 70.10 [2]; People v Prindle, 29 N.Y.3d 463, 467 [2017], cert denied - U.S. -, 138 S.Ct. 514 [2017]; People v Lowery, 158 A.D.3d 1179, 1181 [4th Dept 2018], lv denied 31 N.Y.3d 1119 [2018]). Under the circumstances of this case, "[t]he fact that defendant had been offered a favorable plea bargain does not negate the validity of the sentence imposed" (Morris, 21 A.D.3d at 251). Defendant's Apprendi challenge to the persistent felony offender statute is both unpreserved and meritless (see People v Dingle, 147 A.D.3d 1080, 1081 [2d Dept 2017], lv denied 31 N.Y.3d 1146 [2018]; see generally Prindle, 29 N.Y.3d at 465-466). Defendant's remaining contentions are without merit.

All concur except Carni, J., who is not participating.