People v. Johnson

• Decision Date: 05 February 2016
• Citation: 136 A.D.3d 1338,25 N.Y.S.3d 474
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric W. JOHNSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1338
25 N.Y.S.3d 474

The PEOPLE of the State of New York, Respondent,
v.
Eric W. JOHNSON, Defendant–Appellant.

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

Feb. 5, 2016.

25 N.Y.S.3d 475

Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.

Eric W. Johnson, Defendant–Appellant pro se.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and DeJOSEPH, JJ.

MEMORANDUM:

136 A.D.3d 1338

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ). Contrary to defendant's contention, we conclude that Supreme Court did not abuse its discretion in denying his motion for a mistrial, which was based on his untimely claims that a recording of a jailhouse telephone call admitted in evidence was incomplete, and that he received improper advice from defense counsel (see generally People v. De Mauro, 48 N.Y.2d 892, 893, 424 N.Y.S.2d 884, 400 N.E.2d 1336 ; People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206, lv. denied 21 N.Y.3d 942, 968 N.Y.S.2d 5, 990 N.E.2d 139, reconsideration denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 ). To the extent that defendant's contention is based upon matters outside the record on appeal, those matters should be addressed by a motion pursuant to CPL article 440 (see People v. Whorley, 125 A.D.3d 1484, 1485, 3 N.Y.S.3d 554, lv. denied 25 N.Y.3d 1173, 15 N.Y.S.3d 305, 36 N.E.3d 108 ). We reject defendant's

136 A.D.3d 1339

further contention that reversal is warranted based on the court's alleged mishandling of defendant's complaints about defense counsel. "Even assuming, arguendo, that defendant's complaints suggest[ed] a serious possibility of good cause for substitution requiring a need for further inquiry ..., we conclude that the court afforded defendant the opportunity to express his objections concerning [defense counsel], and the court thereafter reasonably concluded that defendant's ... objections had no merit or substance" (People v. Singletary, 63 A.D.3d 1654, 1654, 880 N.Y.S.2d 829 [internal quotation marks omitted], lv. denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 ).

25 N.Y.S.3d 476

Defendant failed to preserve for our review his contention that the court erred in admitting as demonstrative evidence a pry bar similar to the one used during the commission of the crime (see CPL 470.05[2] ), and we decline to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defendant further contends that he was denied effective assistance of counsel based on defense counsel's failure to object to the admission of the pry bar or the court's limiting instruction with respect thereto. We reject that contention inasmuch as any such objection or argument " ‘[had] little or no chance of success' " (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Contrary to defendant's further contention, he was not denied effective assistance of counsel based on defense counsel's failure to request a justification charge inasmuch as there was no reasonable view of the evidence that would have permitted the jury to find that defendant's use of deadly physical force was justified (see Penal Law § 35.15[2][a] ; People v. Patterson, 115 A.D.3d 1174, 1176, 982 N.Y.S.2d 234, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, ...