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

711.2
KA 03-00716
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC HARRIS, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered March 27, 2003. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree, arson
in the second degree, reckless endangerment in the first degree and
assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a resentence
following the entry of the judgment in appeal No. 2, which convicted
him following a jury trial of numerous offenses, including assault in
the first degree (Penal Law § 120.10 [3]) and arson in the second
degree (§ 150.15). He was sentenced to various determinate and
indeterminate terms of incarceration, but County Court failed to
impose periods of postrelease supervision on the determinate sentences
as required by Penal Law § 70.45 (1). To correct that oversight, the
court in appeal No. 1 resentenced defendant to the original terms of
incarceration and imposed the requisite periods of postrelease
supervision (see generally Correction Law § 601-d). In appeal No. 3,
defendant appeals from an order denying his CPL 440.10 motion to
vacate the judgment of conviction in appeal No. 2.

     Addressing first defendant’s contentions with respect to the
judgment in appeal No. 2, we conclude that the court properly refused
to suppress statements made by defendant at the crime scene and,
subsequently, at the police station. Defendant’s initial statements
at the scene were made to the first trooper who arrived at the scene,
in response to questions concerning how the ongoing fire had been
started and if there was anyone else inside the residence. Those
statements are admissible inasmuch as defendant was not in custody
(see People v Rodriguez, 111 AD3d 1333, 1333, lv denied 22 NY3d 1158;
see generally People v Paulman, 5 NY3d 122, 129), and the trooper’s
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questions were proper based on “the ‘emergency doctrine’ ” (People v
Doll, 21 NY3d 665, 670, rearg denied 22 NY3d 1053, cert denied ___ US
___, 134 S Ct 1552), i.e., legitimate public safety concerns. After
defendant was taken into custody, he was issued Miranda warnings by a
different trooper. During the entire conversation between defendant
and that trooper, defendant was shaking his head left to right. When
asked if he understood the warnings, defendant responded affirmatively
and, when asked if he wished to talk to the trooper, defendant
remained silent.

     One hour later, two investigators attempted to talk to defendant
at the scene but, before they did so, one of the investigators asked
defendant if he had been read the Miranda warnings, if those warnings
had been read by a uniformed sergeant, if defendant understood those
warnings and if he would agree to talk to the troopers. Defendant,
who was no longer shaking his head left to right, responded
affirmatively to each question, and made several incriminating
statements. Shortly thereafter, defendant was transported to a local
police station, where he was interviewed and gave three separate
written statements. Several hours after his arrival at the police
station, the first statement was printed out. Defendant read out loud
his Miranda warnings from the top of that first statement, and he
affirmatively waived the Miranda rights. At no time during the entire
process did defendant ask to speak with an attorney or ask the
investigators to stop speaking with him. Further, at no point did
anyone threaten defendant or make any promises to him. Throughout the
interview, the college-educated defendant was courteous and
cooperative, although he had one hand cuffed to the wall.

     Defendant correctly contends that he did not explicitly waive his
Miranda rights while at the crime scene or before the interview
process began at the police station. It is well settled, however,
“that ‘an explicit verbal waiver is not required; an implicit waiver
may suffice and may be inferred from the circumstances’ ” (People v
Jones, 120 AD3d 1595, 1595; see People v Sirno, 76 NY2d 967, 968;
People v Davis, 55 NY2d 731, 733). Here, defendant agreed to speak
with investigators after confirming that he had been issued Miranda
warnings and understood those warnings. We thus conclude that a
knowing and voluntary waiver of the Miranda rights may be inferred
from the circumstances (see Sirno, 76 NY2d at 968; Jones, 120 AD3d at
1595).

     Defendant further contends that the investigators should have
repeated the Miranda warnings at the police station before any
questioning began. We reject that contention. “[W]here, as here, ‘a
person in police custody has been issued Miranda warnings and
voluntarily and intelligently waives those rights, it is not necessary
to repeat the warnings prior to subsequent questioning within a
reasonable time thereafter, so long as the custody [was] continuous’ ”
(People v Johnson, 20 AD3d 939, 939, lv denied 5 NY3d 853; see People
v Peterkin, 89 AD3d 1455, 1455-1456, lv denied 18 NY3d 885; People v
Debo, 45 AD3d 1349, 1350, lv denied 10 NY3d 809). Here, because
defendant was issued the Miranda warnings at the crime scene,
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                                                         KA 03-00716

reaffirmed his understanding of those warnings at the crime scene and
implicitly waived those rights at the crime scene, there was no need
to repeat the warnings before defendant was questioned at the station
a short time later.

     Defendant further contends that the court’s jury instruction and
the People’s proof at trial materially varied from the allegations in
the indictment with respect to the first count of the indictment and
rendered that count of the indictment duplicitous. Following the
close of proof at trial, the court instructed the jury that it could
convict defendant of that count, charging defendant with assault in
the first degree, if it found, inter alia, that defendant “beat [the
victim] with a piece of wood and/or his fists.” The court repeated
that instruction after a request from the jury. The indictment,
however, alleged that defendant “beat[] her with his fists and a piece
of wood” (emphasis added).

     While defendant seemingly contends that the indictment was
rendered duplicitous by the court’s instruction, defendant’s actual
contention is not that the proof at trial established more than one
assault but, rather, that the court’s instruction to the jury
“differed significantly from the theory of the crime charged in the
indictment” (People v Charles, 61 NY2d 321, 326), and thus violated
his “right to be tried and convicted of only those crimes and upon
only those theories charged in the indictment” (People v Gaston, 104
AD3d 1206, 1207, lv denied 22 NY3d 1156). Such a contention must be
preserved (see e.g. People v Odom, 53 AD3d 1084, 1086, lv denied 11
NY3d 792; People v Prato, 143 AD2d 205, 206, lv denied 72 NY2d 1049,
reconsideration denied 73 NY2d 858), unless the change in theory
concerned an essential element of the offense, i.e., “[t]he variation
from the theory of prosecution found in the indictment did not merely
alter a factual incident in a way still consistent with that theory,
but in fact changed the theory itself” (Charles, 61 NY2d at 329; see
People v Greaves, 1 AD3d 979, 980; People v Scott, 159 AD2d 975, 976).
Inasmuch as the court’s instruction did not change an essential
element of the offense, defendant’s failure to object renders his
contention unpreserved for our review.

     In any event, we conclude that defendant’s contention lacks
merit. “ ‘Where an offense may be committed by doing any one of
several things, the indictment may, in a single count, group them
together and charge the defendant with having committed them all, and
a conviction may be had on proof of the commission of any one of the
things, without proof of the commission of the others’ ” (Charles, 61
NY2d at 327-328; see People v Kaid, 43 AD3d 1077, 1082-1083). “In
charging the jury in the disjunctive, rather than in the conjunctive,
the court did not amend the indictment, permit the People to change
the theory of the prosecution, or render the count duplicitous”
(People v Frascone, 271 AD2d 333, 333). We thus reject defendant’s
further contention that defense counsel was ineffective in failing to
preserve that issue for our review. “There can be no denial of
effective assistance of trial counsel arising from counsel’s failure
to ‘make a motion or argument that has little or no chance of
success’ ” (People v Caban, 5 NY3d 143, 152). We likewise reject
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                                                         KA 03-00716

defendant’s contention that defense counsel was ineffective based on
his failure to request an intoxication charge. Such a charge was not
warranted because the record does not contain evidence that
defendant’s use of intoxicants was “ ‘of such nature or quantity to
support the inference that their ingestion was sufficient to affect
defendant’s ability to form the necessary criminal intent’ ” (People v
Sirico, 17 NY3d 744, 745, quoting People v Rodriguez, 76 NY2d 918,
920).

     Defendant further contends that defense counsel was ineffective
in failing to retain and call an arson expert to testify at trial.
That contention lacks merit. “Defendant has not demonstrated that
such testimony was available, that it would have assisted the jury in
its determination or that he was prejudiced by its absence” (People v
West, 118 AD3d 1450, 1451, lv denied 24 NY3d 1048 [internal quotation
marks omitted]; see People v Venkatesan, 295 AD2d 635, 637, lv denied
99 NY2d 565, cert denied 549 US 854). We do not address defendant’s
remaining challenge to the effectiveness of counsel because it “is
raised for the first time in defendant’s reply brief and thus is not
properly before us” (People v Jones, 300 AD2d 1119, 1120, lv denied 2
NY3d 801; see People v Hall, 106 AD3d 1513, 1514, lv denied 22 NY3d
956).

     We reject defendant’s challenge to the severity of the resentence
in appeal No. 1 and, finally, we conclude with respect to appeal No. 3
that the court properly denied defendant’s CPL 440.10 motion. In that
motion, defendant alleged, inter alia, that he had informed defense
counsel before trial that some of his signatures on the statements had
been forged. He thus alleged that defense counsel was ineffective in
failing to retain a handwriting expert. Attached to the motion were
reports from a handwriting expert, who had been retained by
defendant’s family after trial. At the hearing on the motion,
however, defense counsel testified that he first learned of
defendant’s allegations of forgery when defendant testified at trial.
“The conflicting testimony with respect to whether trial counsel had
been informed about the [alleged forgery] prior to the trial presented
an issue of credibility for the hearing court[,] and we decline to
disturb the resolution of that issue” (People v Castaneda, 198 AD2d
292, 293, lv denied 83 NY2d 870). Moreover, the testimony of
defendant’s proposed handwriting expert was suspect and of little
probative value inasmuch as it was internally inconsistent,
contradicted in parts by the expert’s own reports, and contradicted by
defendant’s own testimony. We thus conclude that defendant has failed
to demonstrate that the expert testimony “would have assisted the jury
in its determination or that [defendant] was prejudiced by its
absence” (West, 118 AD3d at 1451 [internal quotation marks omitted];
see generally People v Hobot, 84 NY2d 1021, 1023-1024). Defendant
therefore “failed to meet his burden at the hearing on the motion of
‘proving by a preponderance of the evidence every fact essential to
support the motion’ ” (People v Smith, 16 AD3d 1081, 1082, lv denied 4
NY3d 891, quoting CPL 440.30 [6]).
Entered: June 12, 2015
                                                Clerk of the Court
                                                Frances E. Cafarell
