People v. Tammaro

• Decision Date: 08 May 2018
• Docket Number: 6490,Ind. 1319/13
• Citation: 161 A.D.3d 475,73 N.Y.S.3d 418 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael TAMMARO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 475

73 N.Y.S.3d 418 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Michael TAMMARO, Defendant–Appellant.

6490

Ind. 1319/13

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

ENTERED: MAY 8, 2018

Christina Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.

Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered May 8, 2015, convicting defendant, after a jury trial, of forgery in the in the second degree (three counts), criminal possession of a forged instrument in the second degree (three counts), identity theft in the first degree and grand larceny in the fourth degree, and sentencing him to an aggregate term of 2 ? to 7 years, unanimously affirmed.

The court providently exercised its discretion in denying defense counsel's application to replace as grossly unqualified a sworn juror whose conduct and statements initially raised questions about his ability to deliberate fairly in light of pressures related to his work and his willingness to join other jurors in deliberation. The juror's responses to the court's thorough inquiry provided unequivocal and credible assurances that he did not possess a state of mind that would prevent him from deliberating fairly and rendering an impartial verdict (see People v. Buford , 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). After the inquiry, his ability to serve impartially was no longer questionable.

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. To the extent the existing record permits review of defendant's argument that his attorney was ineffective for failing to make appropriate objections to the summation, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento , 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). The challenged remarks generally constituted fair comment on the evidence and reasonable inferences to be drawn therefrom (see People v. Overlee , 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d...