People v. TetroPeople v. Tetro
Decided on September 27, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
771 KA 15-02022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v MORGAN TETRO, ALSO KNOWN AS MORGAN BURNELL, DEFENDANT-APPELLANT.
JARROD W.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (LISA E. FLEISCHMANN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered November 16, 2015. The judgment convicted defendant, upon a jury verdict, of grand larceny in the second degree, welfare fraud in the fourth degree, grand larceny in the third degree, offering a false instrument for filing in the first degree (two counts) and criminal tax fraud in the fourth degree (two counts).
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 (
Defendant contends that the grand jury proceeding was defective pursuant to
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 AD3d 1187, 1188-1189 [3d Dept 2014], lv denied 24 NY3d 962 [2014]; People v Young, 35 AD3d 958, 960 [3d Dept 2006], lv denied 8 NY3d 929 [2007]; see also People v Green, 48 AD3d 1056, 1057 [4th Dept 2008], lv denied 10 NY3d 934 [2008]; see generally Hurrell-Harring v State of New York, 15 NY3d 8, 21 [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 AD3d at 1188-1189; Young, 35 AD3d at 960). 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 AD3d 1412, 1413 [4th Dept 2015], lv denied 27 NY3d 1148 [2016]; see generally
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 AD3d 1457, 1459 [4th Dept 2018], lv denied 32 NY3d 1003 [2018], reconsideration denied 32 NY3d 1125 [2018]; see generally People v Baldi, 54 NY2d 137, 147 [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 NY3d 513, 520 [2013]; People v Evans, 142 AD3d 1291, 1292 [4th Dept 2016], lv denied 28 NY3d 1144 [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 of a motion pursuant to
Defendant further contends that the court erred in admitting
Defendant also contends that the court committed reversible error by depriving her of the constitutional right to counsel when it initially prohibited her from communicating with anyone about her testimony during a weekend recess while she was in the midst of testifying in her defense. Defendant failed to preserve that contention for our review inasmuch as defense counsel was “‘present and available to register a protest’ to [the] restriction on communication that would [have] provide[d] the court with an opportunity to rectify its error,” but failed to do so (People v Umali, 10 NY3d 417, 423 [2008], rearg denied 11 NY3d 744 [2008], cert denied 556 US 1110 [2009]; see People v Narayan, 54 NY2d 106, 112 [1981]; People v Brown, 169 AD3d 1258, 1260 [3d Dept 2019], lv denied 33 NY3d 1029 [2019]). In any event, although the court erred in initially issuing a restriction on communication that prohibited defendant from discussing her testimony with defense counsel during the weekend recess (see People v Joseph, 84 NY2d 995, 996 [1994]), reversal is not required under the circumstances of this case. The record establishes that the court rescinded the restriction later the same day upon realizing that it was improper; that defendant and defense counsel thereafter were able to consult, albeit not in person, over the weekend; that the court provided defendant and defense counsel as much time as they deemed necessary to further consult before the trial resumed after the weekend; and that they did so (see Umali, 10 NY3d at 423-424). In view of the foregoing, we conclude that defense counsel‘s failure to object to the initial restriction was not so “egregious and prejudicial as to compromise . . . defendant‘s right to a fair trial” (People v Caban, 5 NY3d 143, 152 [2005]; see People v Stewart, 68 AD3d 1438, 1440 [3d Dept 2009], lv denied 14 NY3d 773 [2010]).
We reject defendant‘s contention that reversal is required
Contrary to defendant‘s additional contention, 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 conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jury was entitled to credit the testimony of the People‘s witnesses, including that of the victim, over the testimony of defendant‘s witnesses, including that of defendant herself, and we perceive no reason to disturb those credibility determinations (see People v Christopher, 64 AD3d 1006, 1006-1007 [3d Dept 2009], lv denied 13 NY3d 795 [2009]; People v Massaro, 32 AD3d 1223, 1223 [4th Dept 2006]; People v Gustke, 201 AD2d 923, 923-924 [4th Dept 1994], lv denied 83 NY2d 911 [1994]).
Finally, defendant‘s sentence, as reduced by operation of law to an aggregate indeterminate term of 7 1/3 to 20 years of imprisonment (see
Entered: September 27, 2019
Mark W. Bennett
Clerk of the Court