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

272
KA 07-00149
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDWARD REED, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

EDWARD REED, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered January 3, 2007. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts), aggravated assault upon a police officer or a peace officer
and criminal possession of a weapon in the second degree (two counts).

     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 aggravated assault upon a police officer or a
peace officer (Penal Law § 120.11) and two counts each of burglary in
the first degree (§ 140.30 [1], [2]) and criminal possession of a
weapon in the second degree (§ 265.03 [former (2)]). Defendant
contends that reversal is required based on a Brady violation, i.e.,
the prosecutor’s failure to turn over copies of police reports
concerning an earlier unrelated shooting, one of which contained a
hearsay statement from a confidential informant implicating one of the
prosecution witnesses who testified in this case. Even assuming,
arguendo, that the reports were required to be turned over
notwithstanding the fact that the majority of them indicated that the
witness did not commit the crime and indeed that the crime was
directed toward that witness in retaliation for another incident, and
further assuming, arguendo, that the information was possessed by the
prosecution and not by the defense, we conclude that reversal is not
warranted. “[T]here is [no] reasonable probability that had it been
disclosed to the defense, the result would have been different—i.e., a
probability sufficient to undermine the [reviewing] court’s confidence
in the outcome of the trial” (People v Bryce, 88 NY2d 124, 128; see
People v Hunter, 11 NY3d 1, 5). That witness was heavily cross-
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                                                         KA 07-00149

examined at trial concerning his numerous convictions, the serious new
charges still pending against him, his failure to come forward with
information concerning this defendant until after the witness was
arrested on those new charges, and the benefit that he received with
respect to those charges in return for testifying against this
defendant. Thus, there is no reasonable probability that additional
cross-examination of that witness concerning one more charge would
have yielded a different result (see generally People v Salton, 74
AD3d 997, 998-999, lv denied 15 NY3d 895).

     By failing to object to County Court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his present challenge to
that ruling (see People v Wilson, 104 AD3d 1231, 1233, lv denied 21
NY3d 1011, reconsideration denied 21 NY3d 1078; People v Williams, 101
AD3d 1730, 1732, lv denied 21 NY3d 1021). In any event, that
contention is without merit inasmuch as the record establishes that
the court “weighed appropriate concerns and limited both the number of
convictions and the scope of permissible cross-examination” (People v
Hayes, 97 NY2d 203, 208).

     In addition to his contention concerning the court’s Sandoval
ruling, defendant contends that the court improperly allowed the
People to present evidence that he had a prior conviction when a
prosecution witness testified that the People’s DNA expert sent a DNA
profile, which was obtained from evidence at the crime scene, to the
CODIS database of convicted felons for comparison. Defendant failed
to preserve that contention for our review (see CPL 470.05 [2]; see
generally People v Page, 105 AD3d 1380, 1382), and we conclude in any
event that the People did not in fact thereby present evidence of a
prior conviction. The expert did not testify that a match was
obtained from that source after she submitted the profile, and thus
there was no evidence that defendant’s DNA was in the database of
felons. Similarly, we reject defendant’s contention that the court
erred in admitting evidence that the police seized sneakers from his
house that were consistent with sneaker prints left at the scene of
the crime, inasmuch as such evidence was relevant to defendant’s guilt
(see e.g. People v Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d
684; People v Turcotte, 252 AD2d 818, 819, lv denied 92 NY2d 1054;
People v Samiec, 181 AD2d 983, 983).

     Defendant further contends that the court erred in denying the
request of a codefendant’s attorney for a jury instruction that one of
the witnesses was an accomplice whose testimony required
corroboration. “Defendant failed to join in [the] codefendant’s
request [for that] charge . . . and thus has failed to preserve his
present contention for our review” (People v Hill, 300 AD2d 1125,
1126, lv denied 99 NY2d 615; see People v Thompson, 59 AD3d 1115,
1116-1117, lv denied 12 NY3d 860; People v Fuller, 286 AD2d 910, 911,
lv denied 97 NY2d 682). In any event, we conclude that “the failure
of the court to give that instruction is of no moment, inasmuch as the
testimony of the witness was in fact amply corroborated” (People v
Fortino, 61 AD3d 1410, 1411, lv denied 12 NY3d 925).
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                                                        KA 07-00149

     Defendant contends in his main and pro se supplemental briefs
that he was denied effective assistance of counsel based on, inter
alia, defense counsel’s failure to challenge a prospective juror or
object to the expert’s testimony that the DNA profile from the
baseball hat was submitted to the CODIS database. We reject that
contention, inasmuch as defendant “failed to show the absence of a
strategic explanation for defense counsel’s” alleged failures (People
v Mendez, 77 AD3d 1312, 1312-1313, lv denied 16 NY3d 799; see People v
Benevento, 91 NY2d 708, 712-713). Furthermore, defense counsel was
not ineffective in failing to pursue his motion to suppress DNA
evidence obtained from liquid that defendant spit out in his driveway,
which the police seized therefrom. It is well settled that “[t]here
can be no denial of effective assistance of . . . counsel arising from
[defense] counsel’s failure to ‘make a motion or argument that has
little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152,
quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702),
and it is clear that the motion was subject to denial on several
grounds, among them that defendant failed to post signs excluding the
public from the exterior areas of his property and that defendant had
no reasonable expectation of privacy in the liquid that he spit out.
Defendant’s remaining contentions concerning ineffective assistance of
counsel “involve[] matters outside the record on appeal, and thus the
proper procedural vehicle for raising [those contentions] is by way of
a motion pursuant to CPL 440.10” (People v Wilson, 49 AD3d 1224, 1225,
lv denied 10 NY3d 966; see People v Hall, 50 AD3d 1467, 1469, lv
denied 11 NY3d 789). Viewed as a whole, the record establishes that
defense counsel provided meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

      As we noted with respect to the prosecutor’s summation in the
context of the appeal by a codefendant, the majority of defendant’s
contentions in his pro se supplemental brief with respect to alleged
instances of prosecutorial misconduct during summation are not
preserved for our review (see CPL 470.05 [2]) “and, in any event, we
conclude that any improprieties were not so pervasive or egregious as
to deprive defendant of a fair trial” (People v Freeman, 78 AD3d 1505,
1505-1506, lv denied 15 NY3d 952 [internal quotation marks omitted]).
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 reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

     The sentence is not unduly harsh or severe. “We note, however,
that the aggregate maximum term of the sentence exceeds the 40-year
limitation set forth in Penal Law § 70.30 (1) (e) (iv), and thus the
sentence should be recalculated accordingly by the Department of
[Corrections and Community Supervision]” (Freeman, 78 AD3d at 1506).
We have considered defendant’s remaining contentions raised in his
main and pro se supplemental briefs and conclude that none warrant
reversal or modification of the judgment.
Entered: March 28, 2014                         Frances E. Cafarell
                                                Clerk of the Court
