GILMER, TEDDERICK A., PEOPLE v ( 2014 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    890
    KA 12-02256
    PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    TEDDERICK A. GILMER, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Erie County
    (Christopher J. Burns, J.), rendered October 23, 2012. The judgment
    convicted defendant, upon a nonjury verdict, of attempted burglary in
    the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a nonjury verdict of attempted burglary in the second degree
    (Penal Law §§ 110.00, 140.25 [2]). Defendant failed to preserve for
    our review his challenge to the legal sufficiency of the evidence
    inasmuch as his motion for a trial order of dismissal at the close of
    his proof was not specifically directed at the alleged error raised on
    appeal (see People v Beard, 100 AD3d 1508, 1509; People v Neary, 56
    AD3d 1224, 1224, lv denied 11 NY3d 928). In any event, defendant’s
    challenge is without merit. At trial, the victim testified that
    someone broke in the front door to her home, broke a small plexiglass
    window adjacent to the front door, and stole various items from her
    home. In addition, the People presented evidence that defendant’s
    fingerprints were found on an unopened window and on a piece of
    plexiglass from a broken window adjacent to the front door. The
    People also presented evidence that defendant told the police that he
    went to the victim’s home for the purpose of breaking in and that he
    unsuccessfully tried to open a window to the home, but that he never
    entered the home. Contrary to defendant’s contention, the evidence is
    legally sufficient to establish that he “must have engaged in conduct
    that came dangerously near commission of the completed crime” of
    burglary in the second degree (People v Naradzay, 11 NY3d 460, 466,
    rearg dismissed 17 NY3d 840 [internal quotation marks omitted]; see
    People v Van Etten, 162 AD2d 976, 976-977, lv denied 76 NY2d 1025).
    Contrary to defendant’s further contention, viewing the evidence in
    -2-                           890
    KA 12-02256
    light of the elements of the crime in this bench trial (see People v
    Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
    against the weight of the evidence (see People v Gaines, 26 AD3d 742,
    742-743, lv denied 6 NY3d 847; see generally People v Bleakley, 69
    NY2d 490, 495).
    Defendant failed to preserve for our review his contention that
    he did not waive his Miranda rights before making a statement to the
    police (see generally People v Rumrill, 40 AD3d 1273, 1274, lv denied
    9 NY3d 926; People v Hightower, 39 AD3d 1247, 1248, lv denied 9 NY3d
    845). In any event, defendant’s contention lacks merit. “Where, as
    here, a defendant has been advised of his Miranda rights and within
    minutes thereafter willingly answers questions during interrogation,
    ‘no other indication prior to the commencement of interrogation is
    necessary to support a conclusion that the defendant implicitly waived
    those rights’ ” (People v Goncalves, 288 AD2d 883, 884, lv denied 97
    NY2d 729, quoting People v Sirno, 76 NY2d 967, 968; see People v Hale,
    52 AD3d 1177, 1178).
    Defendant contends that he was denied his right to counsel when
    the police questioned him concerning the instant crime while he was in
    custody and represented by counsel in another case. We reject that
    contention. According to the testimony of a police detective at the
    Huntley hearing, defendant had been sentenced on an unrelated case
    before the detective questioned him regarding this crime, and
    “[Supreme] Court therefore properly determined that the police were
    not precluded from questioning him regarding the instant crime[]”
    (People v Koonce, 111 AD3d 1277, 1278; see People v Robles, 72 NY2d
    689, 695).
    We reject defendant’s contention that he was denied effective
    assistance of counsel during the pretrial plea negotiations on the
    ground that defense counsel allegedly failed to inform him of the
    prosecution’s plea offer. Here, the record establishes that defense
    counsel informed defendant of the plea offer in writing and during a
    meeting shortly before defendant provided testimony to the grand jury,
    and thus defendant is unable to meet his burden of establishing
    “ ‘that a plea offer was made, that defense counsel failed to inform
    him of that offer, and that he would have been willing to accept the
    offer’ ” (People v Fernandez, 5 NY3d 813, 814; see People v Howard, 12
    AD3d 1127, 1128). Contrary to defendant’s further contention,
    reversal is not warranted on the ground that defense counsel took a
    position adverse to defendant in contradicting defendant’s assertion
    that he failed to inform defendant of the plea offer. The court cured
    any prejudice to defendant by assigning new counsel for defendant and
    conducting a hearing on the issue whether defendant’s initial attorney
    failed to inform him of the plea offer (see People v Stephens, 291
    AD2d 841, 841-842; People v Santana, 156 AD2d 736, 737; see generally
    People v Lewis, 2 NY3d 224, 228-229).
    Finally, we conclude that the court did not abuse its discretion
    in directing that defendant’s sentence was to run consecutively to,
    rather than concurrently with, a sentence imposed for an unrelated
    conviction (see Penal Law § 70.25 [2-b]; see generally People v Elder,
    -3-                           890
    KA 12-02256
    71 AD3d 1483, 1484, lv denied 16 NY3d 743, reconsideration denied 16
    NY3d 858).
    Entered:   October 3, 2014                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 12-02256

Filed Date: 10/3/2014

Precedential Status: Precedential

Modified Date: 10/7/2016