People v. RichardsonPeople v. Richardson
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (
Because he did not object to the use of restraints when he testified before the grand jury, defendant failed to preserve fоr our review his contention that he was thereby denied his right to due process (see People v Williams, 90 AD3d 1514, 1515 [2011], lv denied 18 NY3d 999 [2012]). We nevertheless exercise our power to review the contention as a matter of discretion in the interest of justice (see
We reject defendant‘s further contention that his statement tо the police was not voluntary because it was obtained in violation of his right to be protected from unreasonable search and seizure. There is no reason to disturb County Court‘s determination that defendant‘s grandmother consented to the entry of the police into her home by opening the door wider when asked whether they could talk to defendant (see People v Gardner, 45 AD3d 1371, 1371 [2007], lv denied 9 NY3d 1033 [2008]; People v Long, 124 AD2d 1016, 1017 [1986]; cf. People v Christianson, 57 AD3d 1385, 1387-1388 [2008]). With respect to defendant‘s contention that he was denied effective assistance of counsel because his second attorney failed to raise a Payton violation in his omnibus motion and instead made the argument at the Huntley hearing, we reject that contention inasmuch as it was established at the Huntley hearing that there was no such violation (see People v Orsini, 50 AD3d 1541, 1541 [2008]; People v Johnson, 41 AD3d 1298, 1298 [2007], lv denied 9 NY3d 877 [2007]).
We also rejеct defendant‘s contention that the court abused its discretion in denying his motion for a mistrial based upon the spontaneous testimony of а police witness that he identified defendant as the person he saw running from the house after viewing a mugshot (see People v Scott, 107 AD3d 1635, 1636 [2013], lv denied 21 NY3d 1077 [2013]; see generally People v Ortiz, 54 NY2d 288, 292 [1981]). In any event, by striking the testimony аnd providing a curative instruction, the court minimized any prejudicial effect (see People v Santiago, 52 NY2d 865, 866 [1981]).
We reject defendant‘s contention that his third attorney abdicated his responsibility during jury selection by allegedly deferring to defendant with respect to the exercise of peremptory сhallenges. It is well settled that, “[i]f defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is ‘for the attorney, not the accused to make’ because it is not fundamental, the defendant is deprived of ‘the expert judgment of counsel to which the Sixth Amendment entitles him’ or her” (People v Hogan, 26 NY3d 779, 786 [2016]). Here, however, the record establishes that, although defense counsel properly provided defendant the opportunity to provide meaningful input with respect to the exercise of peremptory challenges (see generally People v Starks, 88 NY2d 18, 29 [1996]), he did not make peremptory challenges “solely in deference to defendant” (People v Black, 137 AD3d 1679, 1679-1680 [2016], lv denied 27 NY3d 1128 [2016]).
Although we agree with defendant that he was denied effective assistance of counsel when his third attorney took a position that was adverse to him with rеspect to his pro se motion pursuant to
Although defendant failed to preserve for our review his contention that the court erred in calculating the expiration date of the order of protection, we exercise our power to review that contention as а matter of discretion in the interest of justice (see