People v. Tetro

• Decision Date: 27 September 2019
• Docket Number: 771,KA 15–02022
• Citation: 175 A.D.3d 1784,109 N.Y.S.3d 776
• Parties: The PEOPLE of the State of New York, Respondent, v. Morgan TETRO, also known as Morgan Burnell, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1784
109 N.Y.S.3d 776

The PEOPLE of the State of New York, Respondent,
v.
Morgan TETRO, also known as Morgan Burnell, Defendant–Appellant.

771
KA 15–02022

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

Entered: September 27, 2019

JARROD W. SMITH, ESQ., P.L.L.C., JORDAN (JARROD W. SMITH OF COUNSEL), FOR DEFENDANT–APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (LISA E. FLEISCHMANN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

175 A.D.3d 1785

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

Memorandum: In this prosecution arising from allegations that defendant and her codefendant took advantage of an elderly woman—whom they had befriended and provided with care—by liquidating her assets and appropriating her funds for their own use, defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, grand larceny in the second degree ( Penal Law § 155.40[1] ). We affirm.

Defendant contends that the grand jury proceeding was defective pursuant to CPL 210.35(5) and that County Court therefore erred in refusing to dismiss the indictment (see generally CPL 210.20[1][c] ). We conclude upon our review of the grand jury minutes that defendant's contention lacks merit (see People v. Gonzales , 145 A.D.3d 1432, 1432, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ; see generally People v. Huston , 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ).

Contrary to defendant's further contention, although the court erred in arraigning her and initially setting bail in the absence of counsel, we conclude that reversal is not required inasmuch as the record establishes that defendant's nonrepresentation at that critical stage of the prosecution had no impact on the ultimate adjudication (see People v. Kaetzel , 117 A.D.3d 1187, 1188–1189, 985 N.Y.S.2d 734 [3d Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ;

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People v. Young , 35 A.D.3d 958, 960, 825 N.Y.S.2d 831 [3d Dept. 2006], lv denied 8 N.Y.3d 929, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007] ; see also People v. Green , 48 A.D.3d 1056, 1057, 849 N.Y.S.2d 826 [4th Dept. 2008], lv denied 10 N.Y.3d 934, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008] ; see generally Hurrell–Harring v. State of New York , 15 N.Y.3d 8, 21, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ). To the extent that defendant, after initially being assigned counsel following arraignment, was thereafter unrepresented for a period pending a further determination of her eligibility for assigned counsel, we likewise conclude that reversal is not required on that ground. Even assuming, arguendo, that such period constituted a critical stage of the prosecution, the lack of representation had no impact on the case as a whole, and defendant's unsupported and speculative assertion to the contrary is insufficient to warrant reversal (see Kaetzel , 117 A.D.3d at 1188–1189, 985 N.Y.S.2d 734 ; Young , 35 A.D.3d at 960, 825 N.Y.S.2d 831 ). Defendant also contends that, in light of the fact that several of the People's witnesses were local attorneys, the court should have assigned her counsel from outside the county. Defendant failed to preserve that contention for our review (see People v. Alexander , 132 A.D.3d 1412, 1413, 17 N.Y.S.3d 667 [4th Dept. 2015], lv denied 27 N.Y.3d 1148, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ; see generally CPL 470.05[2] ), and we decline to exercise our power to review it as a matter of discretion in the interest

175 A.D.3d 1786

of justice (see CPL 470.15[6][a] ). To the extent that defendant contends that defense counsel was ineffective based on conflicts of interest, that contention concerns matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Maltese , 148 A.D.3d 1780, 1783, 50 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ).

We reject defendant's contention that she was denied meaningful representation. Contrary to defendant's assertion, the record establishes that defense counsel, among other things, made appropriate pretrial motions, effectively cross-examined the People's witnesses in conjunction with the codefendant's attorney, lodged appropriate objections, introduced evidence in favor of defendant, and made compelling opening and closing statements, thereby mounting a cogent, albeit unsuccessful, defense premised largely upon the argument that the victim had knowingly approved of the financial dealings as acts of generosity toward defendant and the codefendant based on the victim's close relationship with them (see People v. Crumpler , 163 A.D.3d 1457, 1459, 79 N.Y.S.3d 835 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018], reconsideration denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant also contends that she was denied meaningful representation by defense counsel's decision not to seek severance of her trial from that of the codefendant. That contention lacks merit inasmuch as such a motion would have had little or no chance of success and, moreover, defendant has not shown the absence of strategic or other legitimate explanations for the absence of a severance motion (see People v. McGee , 20 N.Y.3d 513, 520, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; People v. Evans , 142 A.D.3d 1291, 1292, 38 N.Y.S.3d 354 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ). To the extent that defendant's contention that she was denied meaningful representation is based upon defense counsel's alleged failure to consult experts in preparation of the defense, it involves matters outside the record on appeal and must therefore be raised by way

109 N.Y.S.3d 780

of a motion pursuant to CPL article 440 (see People v. Washington , 122 A.D.3d 1406, 1406, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ). To the extent that defendant's contention is based on defense counsel's failure to produce expert witnesses at trial to rebut the evidence introduced by the People, we conclude that defendant "has not established that such expert testimony was available, that it would have assisted the jury in its determination or that [she] was prejudiced by its absence" ( People v. Woolson , 122 A.D.3d 1353, 1354, 997 N.Y.S.2d 865 [4th Dept. 2014], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] [internal quotation marks omitted] ).

Defendant further contends that the court erred in admitting

175 A.D.3d 1787

the testimony of an expert witness for the People because the court did not qualify the witness as an expert. That contention lacks merit inasmuch as the court overruled the objection by defense counsel made on that ground, thereby "implicitly indicat[ing] the court's discretionary acceptance of [the witness's] opinion as ‘expert testimony’ in [her] applicable field" ( People v. Gordon , 202 A.D.2d 166, 167, 608 N.Y.S.2d 192 [1st Dept. 1994],...