People v. Lowery

• Decision Date: 02 February 2018
• Docket Number: 1435,KA 15–01991
• Citation: People v. Lowery, 158 A.D.3d 1179, 71 N.Y.S.3d 247 (N.Y. App. Div. 2018)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey LOWERY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 1179

71 N.Y.S.3d 247

The PEOPLE of the State of New York, Respondent,

v.Jeffrey LOWERY, Defendant–Appellant.

1435

KA 15–01991

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

Entered: February 2, 2018

CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from a judgment convicting him, upon a jury verdict, of failure to register or verify as a sex offender ( Correction Law § 168–f [3 ] ). Defendant was sentenced, as a persistent felony offender (PFO), to an indeterminate term of 15 years to life.

Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during opening statements and on summation because he failed to object to any of the alleged instances of misconduct (see People v. Lewis, 140 A.D.3d 1593, 1595, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). In any event, although we conclude on the merits that defendant was not deprived of a fair trial, we take this opportunity to voice our displeasure with the conduct of the prosecutor. We are certain that the Livingston County District Attorney's Office is well aware that "a prosecutor serves as an officer of the court and a representative of the People of the State" ( id. ), and that prosecutors " ‘play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process' " ( People v. Flowers, 151 A.D.3d 1843, 1845, 57 N.Y.S.3d 598 [4th Dept. 2017] ). Here, the prosecutor's ill-advised decision to clap sarcastically during summation as he was describing defendant's efforts to report a change of address is entirely inconsistent with the standards of conduct expected of prosecutors, and we therefore admonish the prosecutor for such conduct.

We reject defendant's contention that he was denied effective assistance of counsel. With respect to the failure to object to the alleged instances of prosecutorial misconduct, inasmuch as they were not so egregious as to deprive defendant of a fair trial, defense counsel's failure to object thereto did not deprive defendant of effective assistance of counsel (see People v. Black, 137 A.D.3d 1679, 1680–1681, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 NY3d 1128, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ).

We further reject defendant's contention that his waiver of immunity was ineffective and thus that the grand jury proceedings were defective. CPL 190.45(2) provides that "[a] waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness." CPL 190.40(2)(a) provides that a witness who gives evidence in a grand jury proceeding receives immunity unless, in relevant part, the witness "has effectively waived such immunity pursuant to section 190.45." Here, defendant was administered an oath by the grand jury foreperson. After being sworn in, defendant acknowledged that he intended to testify before the grand jury under a waiver of immunity, the waiver of immunity was explained to him by the assistant district attorney, defendant stated that his attorney had explained the waiver of immunity to him and he then signed the waiver in the presence of the grand jury. In our view, the statutory requirements were met and the waiver was valid (see People v. Edwards, 37 A.D.3d 289, 289, 829 N.Y.S.2d 503 [1st Dept. 2007], lv denied 9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ; People v. Young, 205 A.D.2d 908, 909–910, 613 N.Y.S.2d 469 [3d Dept. 1994] ). Furthermore, the fact that defense counsel notarized the waiver does not render counsel ineffective and does not render the waiver invalid (see generally Young, 205 A.D.2d at 908, 613 N.Y.S.2d 469 ).

Although we agree with defendant that County Court erred in counting defendant's prior felony convictions of perjury in the first degree, criminal possession of stolen property in the second degree and assault in the first degree as separate felonies (see Penal Law § 70.10 [1 ][c] ), defendant nevertheless had two qualifying prior felonies for PFO status. Contrary to defendant's contention, his 1977 rape conviction was properly used as both the registerable offense and a predicate felony for PFO purposes and does not violate the prohibition against double jeopardy. The Sex Offender Registration Act (SORA) "does not impose punishment, but is a civil statute aimed at prevention of crime and protection of the public" ( People v. Szwalla, 61 A.D.3d 1289, 1290, 877 N.Y.S.2d 757 [3d Dept. 2009] ; see People v. Miller, 77 A.D.3d 1386, 1387–1388, 908 N.Y.S.2d 513 [4th Dept. 2010], lv denied 16 N.Y.3d 701, 2011 WL 32495 [2011] ). The violation of Correction Law § 168–f is itself a crime, distinct from the original crime as having no shared elements, and sentencing as a PFO is "based solely on the existence of two prior felony convictions" ( People v. Quinones, 12 N.Y.3d 116, 128, 879 N.Y.S.2d 1, 906 N.E.2d 1033 [2009], cert denied 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 [2009] ). Defendant's rape conviction was the prerequisite to his adjudication as a sex offender, and that adjudication is not considered a criminal punishment. The rape conviction is not an element of his Correction Law crime, but his subsequent failure to verify his address under the requirements of SORA is (see §§ 168–f, 168–t ). Contrary to defendant's related contention, New York's PFO statute is constitutional on its face and as applied in this case (see People v. Giles, 24 N.Y.3d 1066, 1068, 2 N.Y.S.3d 30, 25 N.E.3d 943 [2014], cert denied ––– U.S. ––––, 136 S.Ct. 32, 193 L.Ed.2d 46 [2015] ; People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026 [2010], cert denied 565 U.S. 828, 132 S.Ct. 123, 181 L.Ed.2d 46 [2011] ; People v. Cehfus, 140 A.D.3d 1644, 1645, 33 N.Y.S.3d 621 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ).

We...