                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 19, 2015                     104719
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

TASHEEM GOLDSTON,
                    Appellant.
________________________________


Calendar Date:   January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                              __________


     Bruce Evans Knoll, Albany, for appellant.

      P. David Soars, District Attorney, Albany (Vincent Stark of
counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Lamont, J.),
rendered July 26, 2011 in Albany County, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree and criminal possession of a weapon
in the third degree.

      Defendant was charged in a 10-count indictment with various
crimes stemming from two separate incidents – a shooting that
occurred in June 2010 and the subsequent recovery of a weapon
from defendant following his arrest in July 2010. Supreme Court
initially denied defendant's motion to sever the counts in the
indictment but, following a mistrial, defendant's motion in this
regard was granted. The July 2010 weapons charges – consisting
of criminal possession of a weapon in the second degree and
                              -2-                104719

criminal possession of a weapon in the third degree (counts 9 and
10 of the indictment) – proceeded to trial first, and defendant
was found guilty as charged. Sentencing was deferred pending
trial on the balance of the indictment. After defendant was
acquitted of the remaining charges, he was sentenced as a second
violent felony offender to 10½ years in prison followed by five
years of postrelease supervision upon his conviction of criminal
possession of a weapon in the second degree and to a lesser,
concurrent prison term as to the remaining charge. Defendant now
appeals.

      Defendant initially contends that the integrity of the
grand jury proceeding was impaired because the People
collectively presented evidence from the two separate incidents,
impermissibly referred to defendant's parolee status, allowed the
victim to testify in an inconsistent manner and failed to present
exculpatory evidence. As part of his pretrial omnibus motion,
defendant indeed sought to dismiss or reduce the indictment
pursuant to CPL article 210; however, aside from a passing
reference to the People's failure to present exculpatory
evidence, none of the arguments now advanced by defendant were
included in the subject motion (see CPL 210.20 [3]). Hence,
defendant's present challenges to the integrity of the grand jury
proceeding are largely unpreserved for our review (see CPL 470.05
[2]; People v Whitehead, 119 AD3d 1080, 1081 [2014], lv denied 24
NY3d 1048 [2014]), and we discern no basis upon which to take
corrective action in the interest of justice (see People v Green,
105 AD3d 611, 612 [2013], lv denied 21 NY3d 1015 [2013]).

      With respect to the issue of exculpatory evidence, "[t]he
People generally enjoy wide discretion in presenting their case
to the [g]rand [j]ury and are not obligated to search for
evidence favorable to the defense or to present all evidence in
their possession that is favorable to the accused even though
such information undeniably would allow the [g]rand [j]ury to
make a more informed determination. . . . [Nor] do the People
have the same obligation of disclosure at the [g]rand [j]ury
stage as they have at the trial stage" (People v Lancaster, 69
NY2d 20, 25-26 [1986], cert denied 480 US 922 [1987] [citations
omitted]; see People v Thompson, 22 NY3d 687, 697-698 [2014]).
Here, the exculpatory evidence cited by defendant "bore
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principally upon the victim's credibility and, as such, was more
appropriately reserved for presentation to the petit jury than to
the [g]rand [j]ury" (People v Ramjit, 203 AD2d 488, 490 [1994],
lv denied 84 NY2d 831 [1994]). Accordingly, Supreme Court did
not err in denying defendant's motion in this regard.

      To the extent that defendant's claim that he was denied due
process because he was shackled during the course of the
suppression hearing has been preserved for our review, we find it
to be lacking in merit. In Deck v Missouri (544 US 622 [2005]),
the United States Supreme Court held that the US Constitution
"forbid[s] [the] routine use of visible shackles during the guilt
phase" of the trial and "permits a [s]tate to shackle a criminal
defendant only in the presence of a special need" (id. at 626).
Consistent with that principle, the Court of Appeals has
determined that, "as a matter of both federal and state
constitutional law, '[a] defendant has the right to be free of
visible shackles, unless there has been a case-specific, on-the-
record finding of necessity'" (People v Best, 19 NY3d 739, 743
[2012], quoting People v Clyde, 18 NY3d 145, 153 [2011], cert
denied ___ US ___, 132 S Ct 1921 [2012]). Although this
prohibition has been extended to bench trials (see People v Best,
19 NY3d at 743-744; People v Whitehead, 119 AD3d at 1081-1082),
we discern no basis upon which to afford a criminal defendant the
same protection in the context of a pretrial hearing. In any
event, even if we were persuaded that the protections outlined in
Deck and Best extended to pretrial hearings (see People v
Ashline, 124 AD3d 1258, 1259 [4th Dept 2015]), we are satisfied –
upon our review of the hearing transcript – that Supreme Court
articulated a particularized basis for denying defendant's
request that his shackles be removed – namely, defendant's
history of "numerous" violent felonies and the fact that he was
in "segregated secure confinement." Notably, Supreme Court did
not blindly acquiesce to the securing deputy's representation
that defendant was a "security risk" but, rather, made its own
independent assessment as to whether shackling defendant was
required (compare People v Ashline, 124 AD3d at 1259).

      Defendant next takes issue with Supreme Court's denial of
his request to call the victim as a witness at the Wade hearing.
Where, as here, a defendant does not assert that the pretrial
                              -4-                104719

identification procedure was unduly suggestive, the decision to
grant a defendant's request to call the complaining or
identifying witness is a matter committed to the court's sound
discretion (see People v Taylor, 80 NY2d 1, 15 [1992]; People v
Chipp, 75 NY2d 327, 339 [1990], cert denied 498 US 833 [1990];
People v White, 79 AD3d 1460, 1461 [2010], lvs denied 17 NY3d
791, 803 [2011]). Based upon our review of defendant's offer of
proof, we do not find that Supreme Court abused its discretion in
denying defendant's request on this point. Moreover, "[a]ny
improprieties in pretrial identification procedures can be
investigated under the time-honored process of cross-examination"
(People v Chipp, 75 NY2d at 338 [internal quotation marks and
citation omitted]). Defendant's remaining challenges to the
manner in which the suppression hearing was conducted and/or
Supreme Court's substantive rulings with respect thereto, have
been examined and found to be lacking in merit. Similarly, even
assuming that defendant's objections to certain of Supreme
Court's evidentiary rulings at trial have merit, we find any
error in this regard to be harmless in light of the overwhelming
evidence of defendant's guilt.

      Nor do we find merit to defendant's multifaceted
ineffective assistance of counsel claim, which is addressed to
trial counsel and the two other attorneys who sequentially
represented defendant during the various pretrial proceedings.
To the extent that defendant contends that pretrial counsel
failed to properly investigate his case, facilitate his
appearance at the grand jury proceeding or engage in certain
motion practice and, further, pressured him to take a plea, such
claims implicate matters outside the record and, as such, are
properly the subject of a CPL article 440 motion (see People v
Miner, 120 AD3d 1449, 1450 [2014]; People v McGowan, 117 AD3d
1202, 1202 [2014]; People v Davis, 114 AD3d 1003, 1003 [2014], lv
denied 23 NY3d 962 [2014]). As to the balance of defendant's
claim, it is well settled that "[s]o long as the evidence, the
law, and the circumstances of a particular case, viewed in
totality and as of the time of the representation, reveal that
the attorney provided meaningful representation, defendant will
be deemed to have received the effective assistance of counsel"
(People v Brock, 107 AD3d 1025, 1028 [2013], lv denied 21 NY3d
1072 [2013] [internal quotation marks and citations omitted]; see
                               -5-                104719

People v Toye, 107 AD3d 1149, 1152 [2013], lv denied 22 NY3d 1091
[2014]; People v Wiltshire, 96 AD3d 1227, 1228-1229 [2012], lv
denied 22 NY3d 1204 [2014]). Here, the attorneys at issue –
individually and collectively – filed a comprehensive omnibus
motion and otherwise engaged in appropriate pretrial motion
practice, represented defendant's interests at the various
suppression hearings, requested adjournments, effectively cross-
examined the People's witnesses, rendered appropriate objections
and made cogent opening and closing statements. Accordingly,
despite any isolated and discrete shortcomings in counsels'
respective performances, we are satisfied that defendant received
meaningful representation (see People v Robinson, 123 AD3d 1224,
1227-1228 [2014]; People v Hughes, 114 AD3d 1021, 1024-1025
[2014], lv denied 23 NY3d 1038 [2014]; compare People v Bush, 107
AD3d 1302, 1303 [2013]).1

      Finally, defendant asserts that he was deprived of a fair
trial due to prosecutorial misconduct in the context of the
People's summation. As we acknowledged in People v Forbes (111
AD3d 1154 [2013]), a case involving a somewhat similar
summation,2 "[s]ummations rarely are perfect. For that reason,
we accord counsel a certain amount of leeway in this regard and
recognize that not every improper comment made by the prosecuting
attorney during the course of closing arguments warrants reversal
of the underlying conviction. Rather, reversal is warranted
[only] if the misconduct is such that the defendant suffered
substantial prejudice, resulting in the denial of due process – a


     1
        Defendant's related claim – that Supreme Court erred in
denying his motion for substitute counsel – is equally
unavailing. "Because defendant failed to proffer specific
allegations of a seemingly serious request sufficient to warrant
substitution of counsel and was indeed afforded an opportunity to
be heard, it cannot be said that Supreme Court abused its
discretion in denying his request" (People v Edwards, 96 AD3d
1089, 1092 [2012], lv denied 19 NY3d 1102 [2012] [internal
quotation marks and citation omitted]).
     2
        This Court's decision in Forbes was handed down in
November 2013 – long after defendant's May 2011 trial.
                              -6-                104719

determination that, in turn, hinges upon the severity and
frequency of the conduct, whether the trial court took
appropriate action to dilute the effect of the conduct and
whether, from a review of the evidence, it can be said that the
result would have been the same absent such conduct" (id. at 1160
[internal quotation marks and citations omitted]).

      Here, there is no question that the prosecutor made more
than one undeniably improper comment during the course of his
summation – including, "[D]efendant has [a] right to a trial. A
fair trial by jury, he got that, now he's guilty," and "Don't
allow [defendant] to walk the streets with [a] loaded gun." This
latter comment came on the heels of suggesting that the weapon
that defendant was carrying at the time of his arrest "[m]aybe"
could have been used to "kill somebody." The prosecutor further
suggested that defendant attempted to flee when initially
approached by the police on the day of his arrest because he was
in fact guilty, stating, "Like I said, are you running if you are
not guilty?" Additionally, the prosecutor stated that in order
"to find the defendant not guilty you've got to believe that
every single one of these witnesses[] came in here, put their
hand[] on this [B]ible[] and they got up before you and lied.
Flat out lied. That's what you have to believe[] to find
[defendant] not guilty." The prosecutor further assured the
jurors that "this isn't some conspiracy" and invited the jurors
to consider whether various members of the Albany Police
Department and the State Police would "risk their whole careers"
just to implicate defendant in a crime.

      Despite the similarities between the summation given in
Forbes and the matter now before us, we do not believe that
reversal is warranted here. Defense counsel raised numerous
objections during the course of the People's summation – many of
which were sustained – and Supreme Court both struck portions of
the summation from the record and admonished the prosecutor in
the presence of the jury. Additionally, although "the comment
made by the prosecutor regarding what the jury would need to
believe in order to find that defendant was not guilty arguably
shifted the burden of proof" (People v Forbes, 111 AD3d at 1159),
the prosecutor here also made a point of reminding the jury that
"the burden is still fully on me as the representative of the
                              -7-                  104719

People. It never shifts, it never goes to [defendant]."
Further, while the conspiracy reference indeed was unwarranted
and improper, the prosecutor here did not go one step farther and
implicate the trial judge in such activity and, therefore,
managed to stop short of "pitting defendant against the very
judge who had presided over the course of the trial" (id.) – the
precise conduct that we found so inexcusable in Forbes. In
short, upon reviewing the prosecutor's summation in its entirety,
we find it to be flawed but not fatal. Accordingly, after
considering the comments made by the prosecutor, the remedial
actions undertaken by Supreme Court and the overwhelming evidence
of defendant's guilt, we are satisfied that the foregoing errors
were harmless and that reversal of defendant's conviction is
unwarranted. Defendant's remaining contentions, to the extent
not specifically addressed, have been examined and found to be
lacking in merit.

     Peters, P.J., Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
