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

800
KA 11-00103
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JOHN M. MANTOR, DEFENDANT-APPELLANT.


DAVID M. GIGLIO, UTICA (ALYSSA O’NEIL OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered July 22, 2009. The judgment convicted defendant,
upon a jury verdict, of burglary in the first degree, burglary in the
second degree and arson 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
following a jury trial of burglary in the first degree (Penal Law §
140.30 [3]), burglary in the second degree (§ 140.25 [2]) and arson in
the third degree (§ 150.10 [1]). The evidence at trial established
that defendant broke into his ex-girlfriend’s residence and set fire
to the premises, causing significant property damage. Defendant
failed to preserve for our review his contention that County Court
erred in admitting in evidence photographs depicting various relatives
of his ex-girlfriend in her residence prior to the fire (see CPL
470.05 [2]), and 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]). Given the innocuous nature of the photographs
and the minimal prejudice suffered by defendant as a result of their
admission in evidence, we conclude that defense counsel’s failure to
object to the photographs on relevancy grounds did not deprive
defendant of meaningful representation (see generally People v
Benevento, 91 NY2d 708, 712-713). We similarly conclude that
defendant was not deprived of meaningful representation as a result of
his attorney’s failure to retain an expert to testify in support of
his intoxication defense. “ ‘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
Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d 684; see People v
Hunter, 70 AD3d 1388, 1389, lv denied 15 NY3d 751).
                                 -2-                           800
                                                         KA 11-00103

     Defendant further contends that statements he made to police
officers investigating the fire should have been suppressed because he
had invoked his right to counsel earlier that morning on an unrelated
charge. We reject that contention. “Under New York’s indelible right
to counsel rule, a defendant in custody in connection with a criminal
matter for which he is represented by counsel may not be interrogated
in the absence of his attorney with respect to that matter or an
unrelated matter unless he waives the right to counsel in the presence
of his attorney” (People v Lopez, 16 NY3d 375, 377; see People v
Rogers, 43 NY2d 167, 169-174). Here, defendant was not in custody on
the unrelated charge for which he had previously invoked his right to
counsel, and thus he did not have a derivative right to counsel with
respect to the arson charge (see People v Steward, 88 NY2d 496, 500-
502, rearg denied 88 NY2d 1018; People v Osborne, 88 AD3d 1284, 1286;
People v Scaccia, 6 AD3d 1105, 1105-1106, lv denied 3 NY3d 681).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
