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

760
KA 14-00662
PRESENT: SMITH, J.P., NEMOYER, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANTE RICHARDSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered April 4, 2014. The judgment convicted defendant, upon a
jury verdict, of burglary in the first degree, robbery in the first
degree and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by amending the order of protection and as
modified the judgment is affirmed, and the matter is remitted to Erie
County Court for further proceedings in accordance with the following
memorandum: Defendant appeals from a judgment convicting him upon a
jury verdict of burglary in the first degree (Penal Law § 140.30 [4]),
robbery in the first degree (§ 160.15 [4]), and criminal possession of
a weapon in the second degree (§ 265.03 [3]) in connection with a home
invasion. Viewing the elements of the crimes of burglary in the first
degree and robbery in the first degree 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 on the element
of unlawful entry with respect to the burglary count and the taking of
property with respect to the robbery count (see generally People v
Bleakley, 69 NY2d 490, 495).

     Because he did not object to the use of restraints when he
testified before the grand jury, defendant failed to preserve for our
review his contention that he was thereby denied his right to due
process (see People v Williams, 90 AD3d 1514, 1515, lv denied 18 NY3d
999). We nevertheless exercise our power to review the contention as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). We agree with defendant that he should not have been required
to appear before the grand jury in restraints without a statement by
the prosecutor on the record supporting a reasonable basis for the use
of restraints (see People v Gilmore, 12 AD3d 1155, 1156).
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                                                         KA 14-00662

Furthermore, we note that no cautionary instruction was given to the
grand jurors (cf. id.). We nevertheless conclude that the error is
harmless beyond a reasonable doubt, because the evidence presented to
the grand jury was overwhelming and there is no reasonable possibility
that the error affected the determination to indict defendant for
these offenses (see People v Clyde, 18 NY3d 145, 153-154). To the
extent that defendant contends that he was denied effective assistance
of counsel based both upon his first attorney’s failure to object to
the use of restraints and his attorney’s remarks to defendant
regarding the subject, those matters are outside the record on appeal
and thus must be raised by a motion pursuant to CPL 440.10 (see
generally People v Roman, 107 AD3d 1441, 1443, lv denied 21 NY3d
1045).

     We reject defendant’s further contention that his statement to
the police was not voluntary because it was obtained in violation of
his right to be protected from unreasonable search and seizure. There
is no reason to disturb County Court’s determination that defendant’s
grandmother consented to the entry of the police into her home by
opening the door wider when asked whether they could talk to defendant
(see People v Gardner, 45 AD3d 1371, 1371, lv denied 9 NY3d 1033;
People v Long, 124 AD2d 1016, 1017; cf. People v Christianson, 57 AD3d
1385, 1387-1388). With respect to defendant’s contention that he was
denied effective assistance of counsel because his second attorney
failed to raise a Payton violation in his omnibus motion and instead
made the argument at the Huntley hearing, we reject that contention
inasmuch as it was established at the Huntley hearing that there was
no such violation (see People v Orsini, 50 AD3d 1541, 1541; People v
Johnson, 41 AD3d 1298, 1298, lv denied 9 NY3d 877).

      We also reject defendant’s contention that the court abused its
discretion in denying his motion for a mistrial based upon the
spontaneous testimony of a police witness that he identified defendant
as the person he saw running from the house after viewing a mugshot
(see People v Scott, 107 AD3d 1635, 1636, lv denied 21 NY3d 1077; see
generally People v Ortiz, 54 NY2d 288, 292). In any event, by
striking the testimony and providing a curative instruction, the court
minimized any prejudicial effect (see People v Santiago, 52 NY2d 865,
866).

     We reject defendant’s contention that his third attorney
abdicated his responsibility during jury selection by allegedly
deferring to defendant with respect to the exercise of peremptory
challenges. It is well settled that, “[i]f defense counsel solely
defers to a defendant, without exercising his or her professional
judgment, on a decision that is ‘for the attorney, not the accused to
make’ because it is not fundamental, the defendant is deprived of ‘the
expert judgment of counsel to which the Sixth Amendment entitles him’
or her” (People v Hogan, 26 NY3d 779, 786). Here, however, the record
establishes that, although defense counsel properly provided defendant
the opportunity to provide meaningful input with respect to the
exercise of peremptory challenges (see generally People v Starks, 88
NY2d 18, 29), he did not make peremptory challenges “solely in
deference to defendant” (People v Black, 137 AD3d 1679, 1679-1680, lv
                                 -3-                           760
                                                         KA 14-00662

denied 27 NY3d 1128).

     Although we agree with defendant that he was denied effective
assistance of counsel when his third attorney took a position that was
adverse to him with respect to his pro se motion pursuant to CPL
330.30 challenging the use of restraints at the grand jury proceeding
(see People v Hunter, 35 AD3d 1228, 1228), we nevertheless conclude
that, under the unique circumstances presented here, no corrective
action is required. The court had denied three prior motions
challenging the use of restraints at the grand jury proceeding, two of
which were pro se, and defendant’s third attorney advised the court
that he had explained to defendant that the issue would be raised on
appeal, which it was. Because there would be no benefit to defendant
to hold the appeal and remit the matter to County Court for a de novo
review of the motion with new counsel (cf. People v King, 129 AD3d
992, 993; Hunter, 35 AD3d at 1228-1229), we decline to do so.
Contrary to defendant’s contention, he was not denied effective
assistance of counsel at sentencing, and thus we reject defendant’s
contention that the matter should be remitted for resentencing (cf.
People v Lawrence, 27 AD3d 1091, 1091-1092). We have reviewed
defendant’s remaining contentions with respect to the alleged denial
of effective assistance of counsel and conclude that they are without
merit (see generally People v Benevento, 91 NY2d 708, 711-714).

     Although defendant failed to preserve for our review his
contention that the court erred in calculating the expiration date of
the order of protection, we exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). Because we agree with defendant that the court
erred, we modify the judgment by amending the order of protection, and
we remit the matter to County Court to determine the jail time credit
to which defendant is entitled and to specify an expiration date in
accordance with CPL 530.13 (4) (A) (see People v Bradford, 61 AD3d
1419, 1421, affd 15 NY3d 329). We reject defendant’s challenge to the
severity of the sentence. We have reviewed defendant’s remaining
contentions and conclude that none requires reversal or further
modification of the judgment.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
