People v. BurkePeople v. Burke
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of attempted assault in the first degree (
Addressing first defendant‘s contentions in his main brief, we reject his contention that County Court erred in granting the People‘s motion to amend the bill of particulars to list one of the precise locations where defendant allegedly possessed a firearm. Because “the amendment was made by the People prior to jury selection[,] [it] was . . . statutorily permissible” (People v Wright, 13 AD3d 803, 804 (3d Dept 2004), lv denied 4 NY3d 857 [2005];
Defendant‘s contention that the court‘s ruling precluding him from eliciting certain testimony from one of his own witnesses violated his constitutional right to confrontation is unpreserved for our review because defendant did not object on that basis at trial (see People v Liner, 9 NY3d 856, 856-857 (2007), rearg denied 9 NY3d 941 [2007]; People v Garcia, 2 AD3d 321, 322 (1st Dept 2003), lv denied 2 NY3d 740 [2004]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (
We reject defendant‘s contention that he was deprived of a fair trial because the prosecutor improperly acted as an unsworn witness on summation when he described the characteristics of and sound made by a .45 caliber firearm inasmuch as that isolated comment was not so egregious as to deny defendant a fair trial, especially given the instruction to the jury that an attorney‘s summation is not evidence (see generally People v Ashwal, 39 NY2d 105, 109-111 [1976]; People v Warmley, 179 AD3d 1537, 1538 (4th Dept 2020), lv denied 35 NY3d 945 [2020]; People v Fick, 167 AD3d 1484, 1485-1486 (4th Dept 2018), lv denied 33 NY3d 948 [2019]).
By objecting to the People‘s request, defendant preserved his contention challenging the court‘s decision to give the jury a missing witness instruction with respect to an alibi witness mentioned by defendant during his trial testimony (
To the extent that defendant argues that the court erred in denying his motion for a trial order of dismissal, we conclude that, viewing “the evidence in the light most favorable to the People,” there is a valid line of reasoning that could lead a rational person to the conclusion reached by the jury (People v Bay, 67 NY2d 787, 788 [1986]; see also People v Mansilla, 143 AD3d 1263, 1263 (4th Dept 2016), lv denied 29 NY3d 950 [2017]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 (2007)), we also reject defendant‘s contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Although defendant contends that he was deprived of his constitutional right to a speedy trial, we note that “defendant moved to dismiss the indictment on statutory speedy trial grounds only and thus failed to preserve for our review his present contention that he was denied his constitutional right to a speedy trial” (People v Walter, 138 AD3d 1479, 1479-1480 (4th Dept 2016), lv denied 27 NY3d 1141 [2016] [internal quotation marks omitted]; see People v Schillawski, 124 AD3d 1372, 1373 (4th Dept 2015), lv denied 25 NY3d 1207 [2015]; People v Weeks, 272 AD2d 983, 983 (4th Dept 2000), lv denied 95 NY2d 872 [2000]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (
Contrary to defendant‘s further contention, the sentence is not unduly harsh or severe.
We also reject defendant‘s contention in his main and pro se supplemental briefs that he was otherwise denied effective assistance of counsel. Defendant‘s contention with respect to defense counsel‘s failure to secure the testimony of an alibi witness involves matters outside the record and must be raised in a
Finally, we have reviewed defendant‘s remaining contention and conclude that it does not warrant modification or reversal of the judgment.