        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1416
KA 12-02176
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRY COOPER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered November 2, 2012. The judgment
convicted defendant, upon a jury verdict, of attempted robbery in the
first degree and assault in the second 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 attempted robbery in the first degree (Penal
Law §§ 110.00, 160.15 [4]) and assault in the second degree (§ 120.05
[2]). According to the trial testimony of the victim’s sister, who
was in the passenger seat of the victim’s vehicle when the victim was
engaged in the sale of marihuana to the codefendant, the codefendant
held a gun to the victim’s head. The victim’s sister, who was
screaming, then saw defendant at the passenger side of the vehicle.
She testified that, when she exited the vehicle, which was parked
under a street light, she saw that defendant was holding a knife, and
she and defendant looked directly at each other while inches apart
before she ran down the street. The victim’s sister saw defendant
stab the victim numerous times. Defendant was arrested when the
victim’s sister notified the prosecutor at the codefendant’s
preliminary hearing that the man who stabbed her brother was in the
hall.

     A police witness testified at trial that the victim’s sister was
unable to provide any identifying information when interviewed after
the crimes occurred. The victim’s sister admitted that she and the
victim lied to the police regarding the location of the crime, and she
stated that she did not tell police that the victim was selling
marihuana when the crime occurred because she is the mother of four
children and did not want to be connected to a drug sale. She
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                                                         KA 12-02176

explained that her brother had picked her up from work where she had
worked a 16-hour double shift and that he received a call on his cell
phone while he was taking her home. Instead of taking her home,
however, he proceeded to meet the caller to sell marihuana.

     The victim refused to testify at trial, and Supreme Court held
the victim in criminal contempt of court based upon that refusal, and
sentenced him to 30 days’ incarceration (see Judiciary Law § 750 [A]
[3]; People v Sweat, 24 NY3d 348, 353-354). Contrary to defendant’s
contention, the court did not abuse its discretion in refusing to give
a missing witness charge with respect to the victim. Although the
victim was in the courtroom, he was “still . . . unavailable within
the meaning of the [missing witness] rule” based upon his refusal to
testify (People v Savinon, 100 NY2d 192, 198).

      Contrary to defendant’s 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), we conclude that the verdict, which is
based primarily upon the testimony of a single eyewitness, is not
against the weight of the evidence. Because we conclude that a
different verdict would not have been unreasonable, we have reviewed
the record and independently assessed the evidence (see People v
Delamota, 18 NY3d 107, 116-117; People v Bleakley, 69 NY2d 490, 495).
Although the victim’s sister testified that she gave the police
information regarding a physical description, the police witness
testified that she was unable to do so. Nevertheless, the victim’s
sister “never wavered in her testimony” regarding the events or her
identification of defendant (People v Calabria, 3 NY3d 80, 82). When
she saw defendant in the hall outside of the courtroom where she had
attended the codefendant’s preliminary hearing, she promptly alerted
the prosecutor. The victim’s sister testified that, when she exited
the vehicle, she was inches from defendant in well-lit conditions,
albeit briefly and during a very stressful situation; she testified
that she and defendant looked directly at each other and she noted his
eyes and that she was taller than defendant. The police witness
testified that defendant is 5 feet 5 inches tall and the victim’s
sister testified that she is 5 feet 9 inches tall. The victim’s
sister testified on cross-examination that she would never forget the
faces of the men who injured her brother because she thought she and
her brother would be killed that night. Giving “[g]reat deference . .
. to the [jury’s] opportunity to view the witness[ ], hear the
testimony and observe [her] demeanor” (Bleakley, 69 NY2d at 495), we
perceive no basis to substitute our credibility determination for that
of the jury and conclude that the “jury was justified in finding that
guilt was proven beyond a reasonable doubt” (Delamota, 18 NY3d at
117).

     We reject defendant’s further contention that he was denied a
fair trial based on the People’s failure to provide the report from
testing DNA evidence in a timely manner (see CPL 240.20 [1] [c]). The
court advised the jury of the contents of the report, which excluded
defendant and the codefendant as donors of the DNA and determined that
all DNA collected came from a single male donor. Furthermore, the
reports were admitted in evidence at defendant’s request. Where, as
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                                                         KA 12-02176

here, the People’s violation of their obligation did not substantially
prejudice defendant, reversal is not required (see People v Watson,
213 AD2d 996, 997, lv denied 86 NY2d 804).

     Defendant failed to preserve for our review his contention that
he was denied his statutory right to a speedy trial inasmuch as he
failed to make a motion to dismiss the indictment on the ground that
the People were not ready to proceed to trial within six months (see
CPL 30.30 [1] [a]). In any event, the record is not sufficient for us
to review the contention. Because “the applicability of various
exclusions is debatable” (People v Brunner, 16 NY3d 820, 821), and the
record does not clearly support defendant’s contention, we likewise
reject defendant’s further contention that he was denied effective
assistance of counsel based upon defense counsel’s failure to make a
motion to dismiss the indictment on that ground (cf. People v
Clermont, 22 NY3d 931, 932-934). To the extent that defendant’s
contention concerning ineffective assistance of counsel involves
matters that are outside the record on appeal, they must be raised by
way of a motion pursuant to CPL 440.10 (see generally People v Sweet,
98 AD3d 1252, 1253, lv denied 20 NY3d 1015).

     By failing to object to certain remarks made by the prosecutor
during summation, defendant failed to preserve for our review his
contention that he was denied a fair trial by prosecutorial misconduct
on summation (see People v Brown, 120 AD3d 1545, 1545, lv denied 24
NY3d 1082). In any event, we conclude that any improper remarks made
by the prosecutor did not deny defendant a fair trial (see People v
Hendrix, 132 AD3d 1348, 1348). We also reject defendant’s contention
that he was denied effective assistance of counsel based on defense
counsel’s failure to object to the alleged instances of prosecutorial
misconduct during summation and failure to obtain an expert regarding
eyewitness identification. Because the alleged improper remarks did
not deny defendant a fair trial, he was not denied effective
assistance of counsel based upon defense counsel’s failure to object
to those remarks (see id.). With respect to the failure of defense
counsel to obtain expert testimony regarding eyewitness
identification, defendant has failed to demonstrate the “ ‘absence of
strategic or other legitimate explanations for counsel’s alleged
shortcoming[]’ ” (People v Stanley, 108 AD3d 1129, 1130, lv denied 22
NY3d 959). We note that there were two eyewitnesses, i.e., the victim
and his sister, but only the victim’s sister testified. Defense
counsel cross-examined the victim’s sister regarding her ability to
view defendant, her state of exhaustion because she had worked 16
hours, the stress of the situation, and her failure to provide the
police with any identifying information, in order to establish her
inability to provide an accurate identification of defendant as the
man who attacked her brother with a knife. Further, the court gave
the jury an expanded charge on single-witness identification at
defense counsel’s request.

     Finally, the sentence is not unduly harsh or severe.
Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
