TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R.
JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
GARCIA, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND
from a judgment of the Monroe County Court (Frank P. Geraci,
Jr., J.), rendered December 16, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the first degree
(two counts) and attempted murder in the first degree.
hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence
imposed on count three of the indictment and as modified the
judgment is affirmed, and the matter is remitted to Monroe
County Court for resentencing on that count.
Defendant appeals from a judgment convicting him upon a jury
verdict of two counts of murder in the first degree (Penal
Law § 125.27  [a] [viii]; [b]) and attempted murder
in the first degree (§§ 110.00, 125.27  [a]
[viii]; [b]). We reject defendant's contention that
County Court erred in denying his challenges for cause with
respect to three prospective jurors. "CPL 270.20 (1) (b)
provides that a party may challenge a potential juror for
cause if the juror has a state of mind that is likely to
preclude him [or her] from rendering an impartial verdict
based upon the evidence adduced at the trial' "
(People v Harris, 19 N.Y.3d 679, 685). A "
prospective juror whose statements raise a serious doubt
regarding the ability to be impartial must be excused unless
the juror states unequivocally on the record that he or she
can be fair and impartial' " (id. at 685,
quoting People v Chambers, 97 N.Y.2d 417, 419;
see People v Warrington, 28 N.Y.3d 1116, 1119-1120).
Thus, " where [a] prospective juror unambiguously
state[s] that, despite preexisting opinions that
might indicate bias, [he or she] will decide the case
impartially and based on the evidence, the trial court has
discretion to deny the challenge for cause if it determines
that the juror's promise to be impartial is credible'
" (Warrington, 28 N.Y.3d at 1120).
first prospective juror did not express any doubt concerning
his ability to be fair and impartial, and the court therefore
properly denied the for cause challenge (see People v
DeFreitas, 116 A.D.3d 1078, 1079-1080, lv
denied 24 N.Y.3d 960; People v Campanella, 100
A.D.3d 1420, 1421, lv denied 20 N.Y.3d 1060). The
second prospective juror expressed a preexisting opinion that
would indicate bias, but she unambiguously stated upon
further questioning that she would decide the case
impartially based on the evidence (see Warrington,
28 N.Y.3d at 1120). Even assuming, arguendo, that we agree
with defendant that the stricter standard set forth in
People v Torpey (63 N.Y.2d 361, 368, rearg
denied 64 N.Y.2d 885) applies with respect to this
prospective juror, we conclude that the record does not show
any possibility that the prospective juror's impressions
of defendant might influence her verdict. Finally, with
respect to the third prospective juror, her statement that
she would give more credit to the testimony of police
officers raised serious doubt about her ability to be
impartial (see People v Mitchum, 130 A.D.3d 1466,
1467; People v Lewis, 71 A.D.3d 1582, 1583), but the
court thereafter elicited an unequivocal assurance that the
prospective juror would decide the case impartially (see
People v Rogers, 103 A.D.3d 1150, 1152, lv
denied 21 N.Y.3d 946).
contends that the court should have granted his motion for a
mistrial after two prospective jurors indicated that they
heard other prospective jurors discussing the case while
awaiting voir dire. We conclude that the court did not abuse
its discretion in denying the motion (see People v
Reader, 142 A.D.3d 1109, 1109; People v
Dombroff, 44 A.D.3d 785, 787, lv denied 9
N.Y.3d 1005). The court conducted an inquiry of several
deputies who were in the courtroom, and the deputies
indicated that they did not hear any discussion amongst the
prospective jurors about the case. In addition, the court
questioned prospective jurors during individual voir dire if
they had already formed an opinion as to defendant's
guilt or innocence.
failing to pursue his motion to suppress evidence or object
to the introduction of such evidence at trial, defendant
abandoned his contention that the court should have conducted
a hearing on the motion (see People v Mulligan, 118
A.D.3d 1372, 1376, lv denied 25 N.Y.3d 1075). We
reject defendant's contention that counsel's alleged
failure to pursue the motion constituted ineffective
assistance of counsel. Defendant did not meet his burden of
establishing that there was no "strategic or other
legitimate explanation" (People v Rivera, 71
N.Y.2d 705, 709) for counsel's alleged failure to pursue
the motion. "There can be no denial of effective
assistance of counsel arising from counsel's failure to
make a motion... that has little or no chance of success'
" (People v Caban, 5 N.Y.3d 143, 152, quoting
People v Stultz, 2 N.Y.3d 277, 287, rearg
denied 3 N.Y.3d 702). Here, considering the People's
responsive papers, which set forth the police investigation
and identification of defendant as the suspect in the
shootings, we conclude that there is no support in the record
for a colorable argument for suppression inasmuch as the
police had probable cause to arrest defendant (see People
v Carver, 27 N.Y.3d 418, 420-421; People v
Motter, 235 A.D.2d 582, 586, lv denied 89
N.Y.2d 1038). Defendant's other allegations of
ineffective assistance of counsel set forth in his main brief
are also simple disagreements with trial strategy and thus
cannot serve as a basis for relief (see People v
Barboni, 90 A.D.3d 1548, 1548, affd 21 N.Y.3d
393). Defendant's allegations of ineffective assistance
of counsel raised in his pro se supplemental brief are also
without merit, and we conclude that the evidence, the law,
and the circumstances of this case, viewed in totality and as
of the time of the representation, establish that defendant
received meaningful representation (see People v
Baldi, 54 N.Y.2d 137, 147).
contention that the grand jury proceeding was defective
because the indictment was filed after the grand jury term
expired for defendant's case is not preserved for our
review (see People v Soto [appeal No. 2], 163 A.D.2d
889, 889, lv denied 76 N.Y.2d 991), and we decline
to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15  [a]).
As the People correctly concede, the sentence of life without
parole for attempted murder in the first degree is illegal
(see Penal Law § 60.05 ). We therefore
modify the judgment by vacating the sentence imposed on count
three, and we remit the matter to County Court for
resentencing on that count.
failed to preserve for our review his challenge in his pro se
supplemental brief to the use of information from certain
cellular phone records (see People v Hall, 86 A.D.3d
450, 451-452, lv denied19 N.Y.3d 961, cert
denied ___ U.S. ___, 133 S.Ct. 1240). We decline to
exercise our power to review that challenge as a matter of
discretion in the interest of justice (see CPL
470.15  [a]). Defendant's challenge in his pro se
supplemental brief to the sufficiency of the evidence before
the grand jury is not properly before us. " Having
failed to challenge the [legal] sufficiency of the trial
evidence, defendant may not now challenge the [legal]
sufficiency of the evidence before the grand jury' "
(People v McCoy, 100 A.D.3d 1422, 1423; see
People v Smith, 4 N.Y.3d 806, 807-808; People ...