People v. Herr

• Decision Date: 15 April 1994
• Citation: 611 N.Y.S.2d 389,203 A.D.2d 927
• Parties: PEOPLE of the State of New York, Respondent, v. Raymond HERR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 389

611 N.Y.S.2d 389

203 A.D.2d 927

PEOPLE of the State of New York, Respondent, v. Raymond HERR, Appellant.

Supreme Court, Appellate Division Fourth Department.

April 15, 1994.

Linda S. Reynolds by David Schopp, Buffalo, for appellant.

Kevin M. Dillon by John DeFranks, Buffalo, for respondent.

Before PINE, J.P., and LAWTON, FALLON, DAVIS and BOEHM, JJ.

MEMORANDUM:

Defendant contends that Supreme Court erred in denying his CPL 440.10 motion to vacate his judgment of conviction on the ground that he was denied effective assistance of counsel by his counsel's employment as a Village Prosecutor during the period of representation. We agree with Supreme Court that defense counsel's employment as a part-time Village Prosecutor did not constitute a conflict of interest and did not deprive defendant of effective assistance of counsel (see, People v. Herr, 158 Misc.2d 306, 600 N.Y.S.2d 903; see generally, Mitchell v. Maggio, 679 F.2d 77, cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176).

Defendant further contends that Supreme Court erred in refusing to charge the jury that it must determine whether defendant's statement was involuntary because he did not knowingly and intelligently waive his rights to remain silent and to the assistance of counsel (see generally, People v. Graham, 55 N.Y.2d 144, 447 N.Y.S.2d 918, 432 N.E.2d 790). Because defense counsel failed to object at trial to the admission of the statement on that ground, we find no error in Supreme Court's denial of defendant's request to charge (see, People v. Cefaro, 23 N.Y.2d 283, 288, 296 N.Y.S.2d 345, 244 N.E.2d 42; People v. Luis, 189 A.D.2d 657, 659, 592 N.Y.S.2d 357). Moreover, we conclude that the evidence was insufficient to create a factual dispute requiring a charge on the issue of voluntariness (see, People v. Goodson, 179 A.D.2d 584, 580 N.Y.S.2d 649, lv. denied, 79 N.Y.2d 1001, 584 N.Y.S.2d 456, 594 N.E.2d 950; People v. Betances, 165 A.D.2d 754, 564 N.Y.S.2d 269, lv. denied, 76 N.Y.2d 1019, 565 N.Y.S.2d 769). The record establishes that the police officers read defendant his Miranda rights on more than one occasion and that he advised the officers that he understood them and agreed to speak to the police. Defendant's limited ability to read and write does not support defense counsel's assertion that defendant could not understand his Miranda rights. Additionally, there is insufficient evidence in the record to support defense counsel's assertion that defendant had a low IQ or subnormal intelligence and, therefore, could not knowingly or intelligently waive his rights (cf., People v. Matthews, 148 A.D.2d 272, 273-274, 544 N.Y.S.2d 398, lv. denied, 74 N.Y.2d 950, 550 N.Y.S.2d 285, 549 N.E.2d 487).

Defendant also contends that Supreme Court erred in granting the prosecutor's request for defendant to display his tattoos because there existed the less prejudicial alternative of using photographs. Because defense counsel did not specifically object on the ground now asserted, that contention has not been preserved for our review (see, CPL 470.05[2]; People v. Osuna, 65 N.Y.2d 822, 824, 493 N.Y.S.2d 119, 482 N.E.2d 915; People v. Cooper, 147 A.D.2d 926, 537 N.Y.S.2d 700, lv. dismissed 74 N.Y.2d 738, 545 N.Y.S.2d 112, 543 N.E.2d 755), and we see no reason to reach it as a matter of discretion in the interest of justice (see, CPL 470.15[6]. In any event, we find no abuse of discretion in the trial court's determination that the probative nature of that display outweighed its prejudicial effect (see, People v. Davis, 113 A.D.2d 969, 971, 493 N.Y.S.2d 640; see generally, People v. Rodriguez, 64 N.Y.2d 738, 741, 485 N.Y.S.2d 976, 475 N.E.2d 443).

Defendant also contends that prosecutorial misconduct on summation mandates reversal. Because no objection was...