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

979
KA 12-01370
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES BLAIR, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 18, 2012. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the first
degree (two counts), burglary in the first degree and burglary in the
second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict
of two counts of attempted murder in the first degree (Penal Law §§
110.00, 125.27 [1] [a] [v], [vii]) and one count each of burglary in
the first degree (§ 140.30 [3]) and burglary in the second degree (§
140.25 [2]). The conviction arises out of defendant’s participation,
along with a codefendant, in two burglaries at the same residence, and
the infliction of life-threatening injuries upon the burglary victim
during the second burglary. The evidence, viewed in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), is
legally sufficient to support the conviction. In addition, 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 is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that he was denied effective
assistance of counsel based upon defense counsel’s failure to object
to testimony concerning hearsay statements of the nontestifying
codefendant that implicated defendant in the attempted murder and
second burglary. Under the circumstances of this case, the decision
not to object to that testimony was consistent with a legitimate trial
strategy (see People v Benevento, 91 NY2d 708, 712-713; cf. People v
Jeannot, 59 AD3d 737, 737, lv denied 12 NY3d 916). We reject
                                 -2-                           979
                                                         KA 12-01370

defendant’s further contention that he was denied effective assistance
of counsel based upon defense counsel’s failure to object to the
prosecutor’s alleged misconduct during summation. Even assuming,
arguendo, that some of the prosecutor’s comments were improper, we
conclude that his conduct was not so egregious that it deprived
defendant of a fair trial (see People v Benton, 106 AD3d 1451, 1452,
lv denied 21 NY3d 1040), and thus the “failure to object to those
comments does not constitute ineffective assistance of counsel”
(People v Nicholson, 118 AD3d 1423, 1425).

     We agree with defendant, however, that Supreme Court erred in
permitting the prosecutor to impeach him with the statement that he
made to State University police officers. That statement had been
suppressed, and defendant did not open the door to its use for
impeachment by giving testimony contrary to the statement during his
direct examination (see People v Zlochevsky, 196 AD2d 701, 704, lv
denied 82 NY2d 854). Nevertheless, we conclude that the error is
harmless. The evidence against defendant is overwhelming, and there
is no reasonable possibility that the jury would have acquitted
defendant absent the error (see generally People v Crimmins, 36 NY2d
230, 241-242).

     We reject defendant’s further contention that the court erred in
refusing to suppress his statements to Buffalo police officers. The
record of the Huntley hearing supports the court’s determination that
there was a sufficiently pronounced break between the custodial
questioning of defendant by State University police in violation of
his Miranda rights and his subsequent questioning by Buffalo police
(see People v Paulman, 5 NY3d 122, 130-132). The hearing record also
supports the court’s determination that defendant’s statements to
Buffalo police officers were voluntarily made following a valid waiver
by defendant of his Miranda rights (see People v Caballero, 23 AD3d
1031, 1032, lv denied 6 NY3d 846).

     We agree with defendant, however, that the court erred in failing
to rule on those parts of his pretrial motion seeking inspection of
the grand jury minutes and dismissal of the indictment on the grounds
that the evidence before the grand jury was legally insufficient and
the grand jury proceeding was defective (see People v Jones, 103 AD3d
1215, 1217, lv dismissed 21 NY3d 944; People v Spratley, 96 AD3d 1420,
1421). As the People correctly concede, the court’s failure to rule
on the motion cannot be deemed a denial thereof (see People v
Concepcion, 17 NY3d 192, 197-198). We therefore hold the case,
reserve decision and remit the matter to Supreme Court to decide those
parts of defendant’s motion.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
