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

1348
KA 10-02346
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC W. JOHNSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC W. JOHNSON, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered November 4, 2010. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree, assault in the first degree (two counts) and
endangering the welfare of a child (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the periods of
postrelease supervision imposed shall run concurrently and as modified
the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, attempted murder in the second
degree (Penal Law §§ 110.00, 125.25 [1]). Contrary to defendant’s
contention, we conclude that Supreme Court did not abuse its
discretion in denying his motion for a mistrial, which was based on
his untimely claims that a recording of a jailhouse telephone call
admitted in evidence was incomplete, and that he received improper
advice from defense counsel (see generally People v De Mauro, 48 NY2d
892, 893; People v Flowers, 102 AD3d 885, 886, lv denied 21 NY3d 942,
reconsideration denied 23 NY3d 692). To the extent that defendant’s
contention is based upon matters outside the record on appeal, those
matters should be addressed by a motion pursuant to CPL article 440
(see People v Whorley, 125 AD3d 1484, 1485, lv denied 25 NY3d 1173).
We reject defendant’s further contention that reversal is warranted
based on the court’s alleged mishandling of defendant’s complaints
about defense counsel. “Even assuming, arguendo, that defendant’s
complaints suggest[ed] a serious possibility of good cause for
substitution requiring a need for further inquiry . . . , we conclude
that the court afforded defendant the opportunity to express his
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                                                         KA 10-02346

objections concerning [defense counsel], and the court thereafter
reasonably concluded that defendant’s . . . objections had no merit or
substance” (People v Singletary, 63 AD3d 1654, 1654 [internal
quotation marks omitted], lv denied 13 NY3d 839).

     Defendant failed to preserve for our review his contention that
the court erred in admitting as demonstrative evidence a pry bar
similar to the one used during the commission of the crime (see CPL
470.05 [2]), and we decline to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that he was denied effective assistance of
counsel based on defense counsel’s failure to object to the admission
of the pry bar or the court’s limiting instruction with respect
thereto. We reject that contention inasmuch as any such objection or
argument “ ‘[had] little or no chance of success’ ” (People v Caban, 5
NY3d 143, 152). Contrary to defendant’s further contention, he was
not denied effective assistance of counsel based on defense counsel’s
failure to request a justification charge inasmuch as there was no
reasonable view of the evidence that would have permitted the jury to
find that defendant’s use of deadly physical force was justified (see
Penal Law § 35.15 [2] [a]; People v Patterson, 115 AD3d 1174, 1176, lv
denied 23 NY3d 1066). In any event, we conclude that defendant has
failed “to demonstrate the absence of strategic or other legitimate
explanations” for defense counsel’s failure to request a justification
charge (People v Rivera, 71 NY2d 705, 709). We reject defendant’s
further contention that the court erred in failing to instruct the
jury, sua sponte, on the defense of justification. Even if such an
instruction had been supported by the evidence, we conclude that the
“ ‘court did not err in refraining from delivering such a charge sua
sponte, as this would have improperly interfered with defense
counsel’s strategy’ ” (Patterson, 115 AD3d at 1176-1177).

     Defendant failed to preserve for our review his challenges to the
legal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19).
In any event, we conclude that the conviction is supported by legally
sufficient evidence (see generally People v Bleakley, 69 NY2d 490,
495). Furthermore, 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 Bleakley, 69 NY2d at 495).

     Contrary to defendant’s further contention, the sentence is not
unduly harsh and severe. We note, however, that the certificate of
conviction incorrectly reflects that the sentence imposed on count
four is to be served consecutively to count two. The court directed,
instead, that count three is to be served consecutively to count two,
and that count four is to be served concurrently with count two. The
certificate of conviction must therefore be amended accordingly (see
People v Carrasquillo, 85 AD3d 1618, 1620, lv denied 17 NY3d 814).
Finally, although not raised by defendant, we conclude that “the court
erred in imposing consecutive periods of postrelease supervision”
(People v Allard, 107 AD3d 1379, 1379). “Penal Law § 70.45 (5) (c)
requires that the periods of postrelease supervision merge and are
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                                                         KA 10-02346

satisfied by the service of the longest unexpired term” (Allard, 107
AD3d at 1379). “Because we cannot allow an illegal sentence to stand”
(id.), we modify the judgment accordingly.

     We have considered the contentions of defendant in his pro se
supplemental brief and conclude that, to the extent that they have not
been addressed by our decision herein, they either are without merit
or involve matters outside the record.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
