ARROYO, CARLOS J., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1055
KA 12-00253
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CARLOS J. ARROYO, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered April 15, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and reckless endangerment in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and reckless endangerment in the first
degree (§ 120.25). By making only a general motion for a trial order
of dismissal, defendant failed to preserve for our review his
contention that the evidence is legally insufficient to support the
conviction (see People v Hawkins, 11 NY3d 484, 492; People v Gray, 86
NY2d 10, 19). Defendant also contends, however, that the verdict is
against the weight of the evidence, and “ ‘we necessarily review the
evidence adduced as to each of the elements of the crimes in the
context of our review of [that contention]’ ” (People v Stepney, 93
AD3d 1297, 1298, lv denied 19 NY3d 968; see People v Danielson, 9 NY3d
342, 348-349). Viewing the evidence in light of the elements of the
crimes as charged to the jury, we conclude that “the People proved
beyond a reasonable doubt all elements of the crimes charged”
(Stepney, 93 AD3d at 1298; see Danielson, 9 NY3d at 349; see generally
People v Bleakley, 69 NY2d 490, 495).
Defendant further contends that Supreme Court erred in denying
his motion to preclude the People from introducing in evidence a
printout of a mugshot photograph containing defendant’s signed
handwritten statement that the person in the photograph sold him a
vehicle on the evening of defendant’s arrest. We reject defendant’s
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KA 12-00253
contention that he was entitled to preclusion on the ground that the
printout was not included in the CPL 710.30 notice. The People’s
notice of intention to introduce statements by defendant at trial
“ ‘was sufficient under CPL 710.30 to apprise the defendant that they
would be introducing [the printout] . . . since the statements
contained the sum and substance of what [the printout] indicated’ ”
(People v Mikel, 303 AD2d 1031, 1031, lv denied 100 NY2d 564; see
People v Bennett, 56 NY2d 837, 839; People v Peppard, 27 AD3d 1143,
1143-1144, lv denied 7 NY3d 793).
Contrary to defendant’s contention, the court properly denied his
request for a missing witness charge. “[D]efendant’s request for such
a charge, made after the close of proof, was untimely” (People v
Rosario, 277 AD2d 943, 943, affd 96 NY2d 857). In any event,
defendant failed to meet his burden of establishing his entitlement to
such a charge inasmuch as the uncalled witness’s testimony would have
been cumulative (see People v Savinon, 100 NY2d 192, 197; People v
Gonzalez, 68 NY2d 424, 427).
We reject defendant’s further contention that he was denied
effective assistance of counsel. Defense counsel’s failure to object
to allegedly improper comments by the prosecutor on summation does not
constitute ineffective assistance of counsel. The prosecutor’s
comments either were “not so egregious as to deny defendant a fair
trial” or did not in fact constitute prosecutorial misconduct (People
v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954). To the extent
that defendant contends that he was denied effective assistance of
counsel based upon defense counsel’s failure to make a more specific
trial order of dismissal motion, request a probable cause hearing, or
move to suppress his statements to the police and physical evidence
found in the vehicle he was driving, his contention is without merit
because he failed to demonstrate that the motions, if made, would have
been successful (see People v Noguel, 93 AD3d 1319, 1320, lv denied 19
NY3d 965).
We conclude that the sentence is not unduly harsh or severe. We
note, however, that the certificate of conviction fails to reflect
that defendant was sentenced to a five-year period of postrelease
supervision, and it must therefore be amended to reflect that fact
(see People v Smoke, 43 AD3d 1332, 1333, lv denied 9 NY3d 1039).
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court