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

410
KA 12-00898
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARLAND D. BROOKS, DEFENDANT-APPELLANT.


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

MARLAND D. BROOKS, DEFENDANT-APPELLANT PRO SE.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered March 19, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
robbery in the first degree, robbery in the third degree and criminal
possession of a weapon in the third 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, inter alia, murder in the second degree (Penal
Law § 125.25 [1]) and robbery in the first degree (§ 160.15 [2]). The
record establishes that defendant and his girlfriend were social
visitors to the victim’s home when an altercation broke out between
defendant and the victim. During the altercation, defendant inflicted
two stab wounds to the victim’s chest that ultimately caused his
death. The People also presented evidence that defendant reached into
the victim’s pocket and took his wallet as defendant and his
girlfriend left the scene after the stabbing. Defendant raised the
defense of justification at trial, and he testified on his own behalf
that the victim initiated the altercation by charging at him with a
knife.

     We reject defendant’s contention that County Court erred in
directing that he be restrained with a stun belt during trial. A
trial court has “broad discretion” in deciding whether a restraint is
necessary for security reasons as long as it conducts a sufficient
inquiry into the relevant facts and “makes findings on the record
showing that the particular defendant before [it] needs such a
restraint” (People v Buchanan, 13 NY3d 1, 4). We conclude that the
                                 -2-                           410
                                                         KA 12-00898

court acted within its discretion in ordering the use of a stun belt
here based on defendant’s criminal history and his alleged assault of
a guard while in jail awaiting trial (see People v Harvey, 100 AD3d
1451, 1451, lv denied 21 NY3d 943; People v Freeman, 184 AD2d 864,
864-865, lv denied 80 NY2d 903; see generally Buchanan, 13 NY3d at 4).
We reject defendant’s further contention that he was denied a fair
trial by his girlfriend’s testimony, on direct examination by the
prosecutor, that defendant had “just gotten out of jail” shortly
before the crimes were committed. The court struck that testimony in
response to defendant’s objection and gave curative instructions that
were sufficient to alleviate any prejudice (see People v Santiago, 52
NY2d 865, 866; People v Dewitt, 126 AD3d 579, 579).

      Defendant failed to preserve for our review his contention that
the verdict is repugnant inasmuch as he did not object to the verdict
on that ground before the jury was discharged (see People v Alfaro, 66
NY2d 985, 987; People v Spears, 125 AD3d 1400, 1401, lv denied 25 NY3d
1172). In any event, we conclude that the verdict is not repugnant
because defendant’s acquittal of felony murder and robbery in the
first degree pursuant to Penal Law § 160.15 (1) was not “conclusive as
to a necessary element” of any of the crimes of which he was convicted
(People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039; see People
v Lamont, 113 AD3d 1069, 1072, affd 25 NY3d 315). Where “there is a
possible theory under which a split verdict could be legally
permissible, it cannot be repugnant” (People v Muhammad, 17 NY3d 532,
540), and it is theoretically possible for a person to commit
intentional murder and robbery in the first degree pursuant to section
160.15 (2), but not felony murder or robbery in the first degree
pursuant to section 160.15 (1). For instance, a person could
intentionally inflict fatal injuries on his or her victim without
contemporaneous intent to commit a robbery, and then forcibly steal
property from the dying victim while armed with a deadly weapon—a
scenario that is consistent with the evidence and jury charge in this
case.

     By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve his challenge
to the legal sufficiency of the evidence (see People v Hines, 97 NY2d
56, 61, rearg denied 97 NY2d 678; People v Carbonaro, 134 AD3d 1543,
1544). In any event, we conclude that the evidence, when viewed in
the light most favorable to the People (see People v Contes, 60 NY2d
620, 621), is legally sufficient to establish that defendant’s actions
were not justified (see People v Folger, 292 AD2d 841, 842, lv denied
98 NY2d 675), and that he forcibly stole property from the victim
while the victim was still alive (see generally People v Gerena, 49
AD3d 1204, 1206, lv denied 10 NY3d 958). 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 challenges defendant raises
on appeal to his girlfriend’s credibility were matters for the jury to
determine, and we see no reason to disturb its verdict (see People v
Carson, 122 AD3d 1391, 1393, lv denied 25 NY3d 1161).
                                 -3-                           410
                                                         KA 12-00898

     Defendant failed to object to any of the prosecutor’s allegedly
improper summation comments, and thus failed to preserve for our
review his contention that those comments deprived him of a fair trial
(see CPL 470.05 [2]; People v Rumph, 93 AD3d 1346, 1347, lv denied 19
NY3d 967). We decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). We conclude that the claims of ineffective assistance of
counsel in defendant’s main brief are without merit. Defense counsel
was not ineffective in failing to object to the verdict as repugnant
inasmuch as the objection would have been meritless (see Lamont, 113
AD3d at 1072; see generally People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702), and counsel was not at fault for defendant’s
testimony that opened the door to otherwise precluded questioning
about a prior robbery conviction. Counsel “should not have had to
anticipate” that defendant would misrepresent his criminal history in
response to a question whether he was cooperative with the police when
giving a DNA sample in connection with the instant crimes (People v
Long, 307 AD2d 647, 648; see People v Lloyd, 199 AD2d 573, 574, lv
denied 83 NY2d 807).

     Defendant further contends that the People violated their Brady
obligation by failing to accurately disclose the terms of his
girlfriend’s cooperation agreement. The agreement disclosed to the
defense and testified to by defendant’s girlfriend at trial provided
that she would plead guilty to robbery in the first degree and receive
a 10-year sentence of imprisonment. Defendant’s girlfriend entered
her plea after defendant’s trial, and her plea transcript, which is
attached to defendant’s brief, shows that she pleaded guilty to
attempted robbery in the first degree with the understanding that her
sentence of imprisonment would be “no more than” 10 years. She later
received a 7½-year sentence of imprisonment. Even assuming that the
transcripts of his girlfriend’s plea and sentencing are properly
before us, we conclude that defendant has not established that there
was a Brady violation. Those transcripts are not inconsistent with
the People’s position that the agreement disclosed to the defense was
the one in place at the time of trial, and that the People simply
decided to give defendant’s girlfriend a more favorable plea deal
after the trial ended (see People v Patchen, 46 AD3d 1112, 1114, lv
denied 10 NY3d 814), in which case there was no item of evidence that
should have been disclosed and was not (see generally People v
Newkirk, 133 AD3d 1364, 1365, lv denied 26 NY3d 1148; People v
Jenkins, 84 AD3d 1403, 1406, lv denied 19 NY3d 1026). To the extent
that defendant contends that the People did not fully disclose the
terms of his girlfriend’s cooperation agreement, or that she was aware
at the time of trial that she could improve her plea deal through her
testimony, those contentions involve matters outside the record and
thus must be raised by a motion pursuant to CPL article 440 (see
People v Jefferson, 125 AD3d 1463, 1464-1465, lv denied 25 NY3d 990).
The sentence is not unduly harsh or severe.

     Defendant contends in his pro se supplemental brief that the
court erred in failing to instruct the jury to consider his
girlfriend’s crack cocaine intoxication at the time of the events
                                 -4-                           410
                                                         KA 12-00898

underlying this case in evaluating her credibility. That contention
is not preserved for our review because defendant never requested such
an instruction (see generally People v Lipton, 54 NY2d 340, 351), and
we conclude in any event that the proposition in question was
adequately conveyed to the jury by the court’s general instruction on
witness credibility (see People v Dunston, 100 AD3d 769, 770, lv
denied 20 NY3d 1098). As a result, we reject defendant’s related pro
se contention that he was deprived of effective assistance of counsel
by his attorney’s failure to request a jury instruction concerning his
girlfriend’s intoxication (see generally People v Tyler, 43 AD3d 633,
634-635, lv denied 9 NY3d 1010).




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
