People v. Osman

• Decision Date: 31 July 2019
• Docket Number: 521,KA 02–00941
• Citation: 174 A.D.3d 1477,106 N.Y.S.3d 498
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas OSMAN, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1477

106 N.Y.S.3d 498

The PEOPLE of the State of New York, Respondent,

v.Nicholas OSMAN, Defendant–Appellant. (Appeal No. 1.)

521

KA 02–00941

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

Entered: July 31, 2019

THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT–APPELLANT.

PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (JOHN C. ZUROSKI OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a 2001 judgment convicting him, following a jury trial, of murder in the second degree ( Penal Law § 125.25[1] ) and robbery in the second degree (§ 160.10[3] ). In appeal No. 2, defendant appeals from an order settling the record in appeal No. 1. Finally, in appeal No. 3, defendant appeals from an order denying, without a hearing, his motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction. At the outset, we dismiss appeal No. 2 because "[t]here is no statutory authorization for a defendant in a criminal action to appeal from" an order settling the record on appeal ( People v. Gibson, 266 A.D.2d 837, 838, 698 N.Y.S.2d 805 [4th Dept. 1999], lv denied 94 N.Y.2d 919, 708 N.Y.S.2d 359, 729 N.E.2d 1158 [2000] ; see CPL 450.10 ; cf. People v. Fetcho, 91 N.Y.2d 765, 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 [1998] ; People v. Salce, 124 A.D.3d 923, 927, 1 N.Y.S.3d 417 [3d Dept. 2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ).

In appeal Nos. 1 and 3, defendant contends that County Court erred in refusing to sever the trial on the murder count from the trial on the robbery count after granting defendant's motion to sever defendant's trial from the trial of a codefendant. Although the codefendant moved for severance of the two counts, defendant's trial counsel failed to join in that motion. We thus conclude that defendant's contention is not preserved for our review (see People v. Shaw, 249 A.D.2d 969, 970, 671 N.Y.S.2d 369 [4th Dept. 1998], lv denied 91 N.Y.2d 1012, 676 N.Y.S.2d 141, 698 N.E.2d 970 [1998] ; see also People v. Barber–Montemayor, 138 A.D.3d 1455, 1456, 30 N.Y.S.3d 450 [4th Dept. 2016], lv denied 28 N.Y.3d 926, 40 N.Y.S.3d 354, 63 N.E.3d 74 [2016] ). Contrary to defendant's further contention in appeal Nos. 1 and 3, trial counsel was not ineffective in failing to move for severance inasmuch as the counts were properly joined under CPL 200.20(2)(a) and (b) and, therefore, "the court had no discretion to sever them" ( People v. Van Duser [Appeal No. 2], 277 A.D.2d 1034, 1035, 716 N.Y.S.2d 197 [4th Dept. 2000], lv denied 96 N.Y.2d 739, 722 N.Y.S.2d 807, 745 N.E.2d 1030 [2001] ; see CPL 200.20[3] ; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ; People v. Lee, 275 A.D.2d 995, 997, 714 N.Y.S.2d 177 [4th Dept. 2000], lv denied 95 N.Y.2d 966, 722 N.Y.S.2d 483, 745 N.E.2d 403 [2000] ).

Before trial, the court conducted a Cardona hearing (see People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306 [1977] ), during which the court closed the courtroom for a portion of an informant's testimony. Although defendant contends in appeal Nos. 1 and 3 that the court erred in closing the courtroom without " ‘mak[ing] findings adequate to support the closure’ " ( People v. Echevarria, 21 N.Y.3d 1, 11, 966 N.Y.S.2d 747, 989 N.E.2d 9 [2013], quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] ), defendant failed to preserve that contention for our review (see People v. Alvarez, 20 N.Y.3d 75, 81, 955 N.Y.S.2d 846, 979 N.E.2d 1173 [2012], cert denied 569 U.S. 947, 133 S.Ct. 2004, 185 L.Ed.2d 867 [2013] ; People v. Hinojoso–Soto, 161 A.D.3d 1541, 1544–1545, 77 N.Y.S.3d 248 [4th Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we further conclude that defendant was not denied meaningful representation when trial counsel failed to object to the closure inasmuch as "the prosecution established on the record adequate reasons for the closure even if defense counsel had challenged it" ( People v. Torres, 300 A.D.2d 221, 222, 751 N.Y.S.2d 363 [1st Dept. 2002], lv denied 99 N.Y.2d 659, 760 N.Y.S.2d 124, 790 N.E.2d 298 [2003] ; see also People v. Simmons, 220 A.D.2d 629, 630, 633 N.Y.S.2d 49 [2d Dept. 1995], lv denied 87 N.Y.2d 907, 641 N.Y.S.2d 237, 663 N.E.2d 1267 [1995] ).

Over defendant's objection, the court granted the application of a news station to place a single camera in the courtroom for the entirety of the trial proceedings. Defendant contends, in appeal No. 1, that he was denied his right to due process by the presence of the camera. We reject that contention. In our view, defendant failed to establish any "actual prejudice resulting from the presence of the camera[ ] during trial" ( People v. Odell, 26 A.D.3d 527, 529, 808 N.Y.S.2d 830 [3d Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] ; see People v. Nance, 2 A.D.3d 1473, 1474, 770 N.Y.S.2d 524 [4th Dept. 2003], lv denied 2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ).

Defendant further contends, in appeal No. 3, that he was improperly compelled to wear a stun belt during his trial inasmuch as the court did not place on the record its findings showing that defendant needed such a restraint. Assuming, arguendo, that defendant was forced to wear a stun belt, we need not reverse the court's order denying defendant's CPL 440.10 motion because defendant failed to object to the use of a stun belt, and the improper use of a stun belt is not a mode of proceedings error (see People v. Cooke, 24 N.Y.3d 1196, 1197, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert denied 577 U.S. ––––, 136 S.Ct. 542, 193 L.Ed.2d 434 [2015] ). Thus, the failure to object to the stun belt's use means that "reversal would not have been required " on a direct appeal ( People v. Schrock, 108 A.D.3d 1221, 1224, 969 N.Y.S.2d 668 [4th Dept. 2013], lv denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013], reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014] ). As a result, even on the merits, there is no basis upon which to vacate the judgment of conviction (see CPL 440.10[1][f] ). Defendant further contends that trial counsel was ineffective in failing to object to the use of a stun belt. We disagree. The seminal case requiring that a court place findings of fact on the record before requiring a defendant to wear a stun belt is People v. Buchanan, 13 N.Y.3d 1, 4, 884 N.Y.S.2d 337, 912 N.E.2d 553 [2009], which was decided eight years after the judgment in this case. Although the Court's decision in Buchanan "did not announce ‘ "new" rules of law’ " ( People v. Hall, 156 A.D.3d 1475, 1476, 68 N.Y.S.3d 241 [4th Dept. 2017], quoting People v. Vasquez, 88 N.Y.2d 561, 573, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ), we nevertheless conclude that trial counsel was not ineffective in failing to anticipate the procedural requirements established by the Court's decision in Buchanan (see People v. Lewis, 102 A.D.3d 505, 506, 958 N.Y.S.2d 348 [1st Dept. 2013], affd 23 N.Y.3d 179, 989 N.Y.S.2d 661, 12 N.E.3d 1091 [2014] ).

We reject defendant's further contention in appeal Nos. 1 and 3 that he is entitled to a new trial due to alleged errors during jury selection. In particular, defendant contends that the court erred in denying his challenge for cause to a first prospective juror and in seating on the jury a second prospective juror who allegedly demonstrated actual bias. Defendant does not dispute that he did not peremptorily challenge the second prospective juror, but he contends that the court should have obtained from that prospective juror an unequivocal assurance of her impartiality. "By failing to raise that challenge in the trial court ..., defendant failed to preserve it for our review" ( People v. Boykins, 134 A.D.3d 1542, 1542, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] [internal quotation marks omitted]; see People v. Simmons, 119 A.D.3d 1343, 1344, 988 N.Y.S.2d 389 [4th Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014], reconsideration denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014] ).

Even if we were to assume, arguendo, that the court erred in failing to excuse the second prospective juror sua sponte, such an error would not constitute reversible error "unless ... defendant ha[d] exhausted his peremptory challenges at the time or, if he ha[d] not, he peremptorily challenge[d] such prospective juror and his peremptory challenges [were] exhausted before the selection of the jury [was] complete" ( CPL 270.20[2] ; see Boykins, 134 A.D.3d at 1542, 22 N.Y.S.3d 774 ; Simmons, 119 A.D.3d at 1344, 988 N.Y.S.2d 389 ).

Moreover, even if we were to assume, arguendo, that the court erred in failing to excuse the first prospective juror for cause, that error would likewise require reversal only if defendant, who used a peremptory challenge to strike the prospective juror, exhausted his peremptory challenges before the selection of the jury was complete (see CPL 270.20[2] ; People v. Torpey, 63 N.Y.2d 361, 365, 482 N.Y.S.2d 448, 472 N.E.2d 298 [1984], rearg. denied 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008 [1985] ; People v. Thorn, 269 A.D.2d 756, 756–757, 704 N.Y.S.2d 402 [4th Dept. 2000] ).

The problem in these appeals is that the records in appeal Nos. 1 and 3 do not reflect whether defendant exhausted his peremptory challenges. In his CPL 440.10 motion in appeal No. 3, defendant submitted evidence establishing that, at the time of this trial, the trial judge had a practice of having attorneys write their challenges on slips of paper, which would then be placed in the...