People v. Bruno

63 A.D.3d 1297, 880 N.Y.S.2d 777
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 11, 2009
StatusPublished
Cited by19 cases

This text of 63 A.D.3d 1297 (People v. Bruno) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bruno, 63 A.D.3d 1297, 880 N.Y.S.2d 777 (N.Y. Ct. App. 2009).

Opinion

Stein, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered July 25, 2008, upon a verdict convicting defendant of the crimes of burglary in the third degree, burglary in the second degree, possession of burglar’s tools, criminal mischief in the fourth degree (two counts), petit larceny, criminal possession of stolen property in the fourth degree (two counts) and criminal possession of a controlled substance in the seventh degree, and the violation of possession of a controlled substance by ultimate users original container.

Defendant was indicted under two separate instruments alleging the commission of a variety of crimes, primarily property-related. The charges included in the first indictment arose out of defendant’s conduct in the Town of Putnam, Washington County on December 19, 2007. The second indictment charged defendant with additional crimes, primarily relating to his [1298]*1298conduct in the Town of Hampton, Washington County on December 14, 2007. Following a jury trial, defendant was convicted of the crimes of burglary in the third degree, burglary in the second degree, possession of burglar’s tools, criminal mischief in the fourth degree (two counts), petit larceny, criminal possession of stolen property in the fourth degree (two counts) and criminal possession of a controlled substance in the seventh degree, and the violation of possession of a controlled substance by ultimate users original container (see Public Health Law § 3345). County Court sentenced defendant to an aggregate prison term of 2 to 6 years on the convictions arising out of the first indictment (plus a $50 fine on the Public Health Law violation), to be followed, consecutively, by an aggregate prison term of 12 years and five years of postrelease supervision on the convictions arising out of the second indictment. Defendant appeals.

Initially, we note that defendant acknowledges that several of his grounds for appeal are not preserved for our review, but argues that we should take corrective action in the interest of justice. Inasmuch as the request that we exercise our interest of justice jurisdiction is premised largely on defendant’s claim of ineffective assistance of counsel, we first address the merits of that claim. “So long as the evidence, the law, and the circumstances of a particular case, viewed .in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d 137, 147 [1981] [citations omitted]; see People v Stevenson, 58 AD3d 948, 949-950 [2009]).

Here, despite substantial evidence against defendant, his counsel first negotiated a favorable plea bargain, which defendant rejected. At trial, defendant’s counsel cross-examined witnesses and pursued a legitimate defense strategy that focused on the circumstantial nature of the evidence of some of the crimes and attempted to demonstrate the existence of another suspicious individual in the area at the time defendant was found in possession of the stolen items. Counsel also suggested that the amount of time that defendant would have had to commit his last burglary was insufficient for him to have done so, and challenged the value of the stolen property found in defendant’s possession. Indeed, defense counsel’s strategy was effective with respect to the charge for grand larceny in the fourth degree, as the jury only convicted defendant of the lesser included offense of petit larceny (see Penal Law § 155.25).

Nor was counsel’s failure to make an effective pretrial [1299]*1299omnibus motion sufficient to warrant a conclusion that his representation was deficient (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Seavey, 305 AD2d 937, 939 [2003], lv denied 100 NY2d 624 [2003]). While County Court properly denied defendant’s motion on the ground that it was not supported by any sworn allegations of fact specific to the case (see CPL 710.60 [1]; People v Gruden, 42 NY2d 214, 215 [1977]; People v Gadsden, 273 AD2d 701, 702 [2000], lv denied 95 NY2d 934 [2000]), our review of the record also reveals that the requests for relief were of questionable merit. Considering the totality of the circumstances, we find that defendant was afforded meaningful representation at trial (see People v Stevenson, 58 AD3d at 949-950; People v Hutchinson, 57 AD3d 1013, 1014 [2008]).

In that light, we note that defendant failed to preserve for our review his contention that he was deprived of a fair trial based on the jury selection process, inasmuch as defendant made no objection to the jury selection process or challenge to the individual jurors at the time of trial (see People v Higgins, 57 AD3d 1315,1316 [2008]; People v Fehr, 45 AD3d 920, 923 [2007], lv denied 10 NY3d 764 [2008]). In any event, we discern no basis for a reversal in the interest of justice (see CPL 470.15 [3] [c]). Although the initial responses of several jurors to questions posed by County Court prompted follow-up questions on their ability to be impartial, they ultimately responded with unequivocal assurances of their impartiality (see People v Button, 56 AD3d 1043, 1045 [2008], lv dismissed 12 NY3d 781 [2009]).

Defendant’s contention that the evidence presented at trial was legally insufficient to support many of his convictions was also not preserved, inasmuch as defendant failed to make a specific motion detailing the alleged deficiencies in the People’s case (see People v Coston, 55 AD3d 943, 945 [2008], lv denied 11 NY3d 924 [2009]; People v Craft 36 AD3d 1145, 1146 [2007], lv denied 8 NY3d 945 [2007]). However, based upon our review of the record, we invoke our interest of justice jurisdiction and modify the judgment by reversing defendant’s convictions of criminal possession of a controlled substance in the seventh degree and the violation of possession of a controlled substance by ultimate users original container.

11 [I]n a drug-related prosecution, the People’s case is legally sufficient if the evidence provides a ‘reliable basis’ for inferring the presence of a controlled substance” (People v Swamp, 84 NY2d 725, 730 [1995], quoting People v Kenny, 30 NY2d 154, 157 [1972]). However, conclusory statements by witnesses are insufficient to identify controlled substances as such (see People v O’Neill, 285 AD2d 669, 672 [2001]). Here, even viewing the [1300]*1300evidence in the light most favorable to the People, as we must (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Gayle, 53 AD3d 857, 858 [2008], lv denied 11 NY3d 832 [2008]; People v Carter, 50 AD3d 1318, 1320 [2008], lv denied 10 NY3d 957 [2008]), we find that the People’s witnesses offered no basis for their conclusion that the loose pills found in defendant’s possession were hydrocodone (see People v O’Neill, 285 AD2d at 672). Thus, defendant’s convictions of criminal possession of a controlled substance in the seventh degree and possession of a controlled substance by ultimate users original container should be reversed.

To the extent that defendant also argues that his remaining convictions were against the weight of the evidence, we disagree.

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Bluebook (online)
63 A.D.3d 1297, 880 N.Y.S.2d 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bruno-nyappdiv-2009.