[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Figueroa 2024 NY Slip Op 04691 [230 AD3d 1581] September 27, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 13, 2024 [*1] The People of the State of New York, Respondent, v Nelson E. Figueroa, Jr., Appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Allison V. McMahon of counsel), for defendant-appellant. Kevin T. Finnell, District Attorney, Batavia (William G. Zickl of counsel), for respondent. Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered November 24, 2020. The judgment convicted defendant upon a plea of guilty of predatory sexual assault against a child (two counts), sexual abuse in the first degree, and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating that part of the sentence awarding restitution and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of predatory sexual assault against a child (Penal Law former § 130.96), arising from defendant's repeated sexual abuse of his girlfriend's daughter (victim). Contrary to defendant's contention and the People's incorrect concession ( see People v Berrios , 28 NY2d 361, 366-367 [1971]; People v Edmonds , 229 AD3d 1275 , 1276 [4th Dept 2024]; People v Morrison , 179 AD3d 1454 , 1455 [4th Dept 2020], lv denied 35 NY3d 972 [2020]), the record establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see Edmonds , 229 AD3d at 1276-1277; People v Giles , 219 AD3d 1706 , 1706-1707 [4th Dept 2023], lv denied 40 NY3d 1039 [2023]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Lopez , 6 NY3d 248 , 256 [2006]). We note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal ( see NY Model Colloquies, Waiver of Right to Appeal, https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf; see generally Thomas , 34 NY3d at 567; Edmonds , 229 AD3d at 1277; Giles , 219 AD3d at 1706). Contrary to defendant's assertion, the court did not mischaracterize the appeal waiver as "an absolute bar to the taking of a first-tier direct appeal" ( Thomas , 34 NY3d at 558; see Edmonds , 229 AD3d at 1277; see also People v Wilson , 217 AD3d 1561 , 1562 [4th Dept 2023], lv denied 40 NY3d 1000 [2023]; People v Cromie , 187 AD3d 1659 , 1659 [4th Dept 2020], lv denied 36 NY3d 971 [2020]). Instead, the court followed the model colloquy nearly verbatim, explaining that defendant retained the right to take an appeal, but that his conviction and sentence would, "as a practical matter," "be final" because he was giving up the right to appellate review of "most claims of error," including claims regarding the severity of the sentence but excluding the "limited claims" that survive an appeal waiver, such as those relating to the voluntariness of the plea, the validity of the appeal waiver, and the legality of the sentence ( see Thomas , 34 NY3d at 567; Edmonds , 229 AD3d at 1277; People v Jackson , 198 AD3d 1317 , 1318 [4th Dept 2021], lv denied 37 NY3d 1096 [2021]). Contrary to defendant's further assertion, the record establishes that defense counsel had already "take[n] a few minutes" to discuss with defendant the appeal waiver required to obtain the court's sentencing commitment; the record also establishes that, upon an inquiry by the court consistent with the model colloquy, defendant confirmed that he had discussed waiving his right to appeal with defense counsel ( see NY Model Colloquies, Waiver of Right to Appeal, https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf; see generally Thomas , 34 NY3d at 560). Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see [*2] Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257 , 266-267 [2011]; People v Callahan , 80 NY2d 273, 283 [1992]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]). In further seeking to invalidate the appeal waiver, defendant encourages us to apply the rule created by the Second Department that where, as here, the inclusion of the appeal waiver as part of a plea agreement is demanded by the court rather than the People, the appeal waiver is unenforceable if the court fails to sufficiently articulate the reasons for its demand ( see People v Sutton , 184 AD3d 236 , 244-245 [2d Dept 2020], lv denied 35 NY3d 1070 [2020]). We have "not adopted the Second Department's requirement that the court articulate a reason for requiring a[n appeal] waiver in a . . . plea proceeding" ( People v Dilworth , 189 AD3d 636 , 637 [1st Dept 2020], lv denied 36 NY3d 1096 [2021], denied reconsideration 37 NY3d 964 [2021]). In any event, the court here, unlike the court in Sutton , included the appeal waiver as a condition of the plea offer prior to accepting defendant's plea and articulated on the record that the appeal waiver was required in order for defendant to secure the benefit of the sentencing limitation promised by the court ( see id. ; see also People v Guerrero , 194 AD3d 1258 , 1259 [3d Dept 2021], lv denied 37 NY3d 992 [2021]). Defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of the incarceration component of his sentence ( see Lopez , 6 NY3d at 255-256; Witherow , 203 AD3d at 1596). Next, defendant challenges the court's imposition of restitution on the ground that the girlfriend's request therefor was not based on any actual out-of-pocket loss that qualifies as a valid basis for restitution. We note at the outset that defendant's challenge to the restitution component of his sentence survives his valid waiver of the right to appeal inasmuch as restitution was not included in the terms of the plea agreement ( see Witherow , 203 AD3d at 1596; People v McBean , 192 AD3d 1706 , 1707 [4th Dept 2021], lv denied 37 NY3d 958 [2021]; People v Rodriguez , 173 AD3d 1840 , 1841 [4th Dept 2019], lv denied 34 NY3d 953 [2019]). We further note that defendant preserved his challenge for appellate review by objecting to the imposition of restitution on the same ground he now advances ( see People v Richardson , 173 AD3d 1859 , 1860-1861 [4th Dept 2019], lv denied 34 NY3d 953 [2019], denied reconsideration 34 NY3d 1081 [2019]). The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend's statements, defendant's offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel's objection that the claimed expenses were not directly caused by defendant's offenses, imposed the requested restitution. That was error. "Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to 'make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby' " ( People v Horne , 97 NY2d 404, 410 [2002]; see People v Connolly , 27 NY3d 355 , 359 [2016]; Witherow , 203 AD3d at 1596). Restitution and reparation may be required for expenses that "were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime" ( People v Cruz , 81 NY2d 996, 998 [1993]; see People v Johnson , 125 AD3d 1419 , 1421 [4th Dept 2015], lv denied 26 NY3d 1089 [2015]). Conversely, the statute "does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant's crime" ( People v Case , 214 AD3d 1379 , 1381 [4th Dept 2023]). Here, we conclude that the claimed expenses do not constitute "actual out-of-pocket loss caused" by defendant's offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend's unpaid rent and utility bill are costs "not directly caused by . . . defendant's crime[s]" ( Case , 214 AD3d at 1381). Contrary to the People's assertion, the girlfriend's request did not constitute a claim for [*3] lost wages directly caused by defendant's offenses ( cf. People v Robinson , 133 AD3d 1043 , 1044 [3d Dept 2015], lv denied 27 NY3d 1154 [2016]). We therefore modify the judgment accordingly. Present—Smith, J.P., Bannister, Montour, DelConte and Hannah, JJ.

[Assistant]
In
upholding defendant's guilty plea, the 4th Department declined to adopt
2nd Department rule that, if the trial court makes a waiver of appeal a
condition of a a plea, the court Court must place its reasons for doing so on
the record.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Perez 2024 NY Slip Op 05188 [231 AD3d 599] October 22, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Jose Perez, Appellant. Twyla Carter, The Legal Aid Society, New York (Isabel Patkowski of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jonathan Sclar of counsel), for respondent. Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered November 17, 2022, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed. Defendant made a valid waiver of his right to appeal ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US — [2020]). The combination of the court's oral colloquy with defendant and the detailed written waiver that he signed after consultation with counsel satisfied the requirements of a valid waiver. This waiver forecloses review of his challenge to the issuance of an order of protection ( People v Key , 222 AD3d 536 , 536 [1st Dept 2023], lv denied 41 NY3d 943 [2024]; People v Frasqueri , 193 AD3d 464 , 464 [1st Dept 2021], lv denied 37 NY3d 965 [2021]). In any event, defendant failed to preserve his challenge to the order of protection ( see People v Nieves , 2 NY3d 310 , 315-317 [2004]; see also Key , 222 AD3d at 537; Frasqueri , 193 AD3d at 464), and we decline to review his claim in the interest of justice. As an alternative holding, we find that the record sufficiently reflected the reasons for the imposition of the order ( People v Key , 222 AD3d at 537; People v Gonzalez , 178 AD3d 440 , 440 [1st Dept 2019], lv denied 35 NY3d 941 [2020]). Concur—Webber, J.P., Friedman, Mendez, Shulman, O'Neill Levy, JJ.

[Assistant]
Valid
waiver of appeal forecloses consideration of defendant's challenge to the
issuance of an order of protection.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Hensleigh 2024 NY Slip Op 06084 [233 AD3d 1105] December 5, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Jordan Hensleigh, Appellant. Steven M. Sharp, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Jesse L. Ashdown of counsel), for respondent. Ceresia, J. Appeal from judgment of the County Court of Saratoga County (Chad W. Brown, J.), rendered August 10, 2023, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant was charged by indictment with two counts of assault in the second degree stemming from an altercation in court during which defendant, who had been informed that there was an active warrant authorizing his arrest, resisted being detained by court officers, one of whom sustained injuries during the incident. In an omnibus motion, defendant subsequently moved to dismiss the indictment on several grounds, including that there exists a legal impediment to conviction ( see CPL 210.20 [1] [h]). That is, defendant alleged that the court officers were not performing a lawful duty, as required to establish his commission of the charged crimes, [FN*] because they had no authority to execute an arrest warrant. The People opposed the motion, and County Court denied it. Thereafter, in full satisfaction of the indictment as well as another unrelated indictment charging defendant with family offenses, defendant pleaded guilty, as relevant here, to the reduced charge of attempted assault in the second degree and waived his right to appeal. Defendant was subsequently sentenced by County Court, as a second felony offender with a prior violent felony, to a prison term of 2 to 4 years, which was ordered to run consecutive to an unrelated prison term. Defendant appeals. As an initial matter, defendant's argument is properly before us despite his plea of guilty and waiver of the right to appeal. Contrary to the People's contention, defendant is not challenging the legal sufficiency of the grand jury evidence or the factual sufficiency of his plea allocution. Rather, defendant asserts that there is a legal impediment to prosecution, in that "there is no set of facts that could be proved, or to which a defendant could plead, that would establish guilt of [the charged crime] upon the theory alleged" ( People v Plunkett , 19 NY3d 400 , 407 [2012]). Such a challenge is not forfeited by a guilty plea ( see id .). Further, a legal impediment argument is akin to a claim of a jurisdictional defect, which is not foreclosed by an appeal waiver ( see People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). Turning to the merits, the record reveals that, while defendant was present in Family Court for an unrelated matter, defendant and his attorney were advised by court officers that there was an outstanding warrant for his arrest and that, following the court proceeding, he would be held in a secure area to await the arrival of the police. When defendant's matter concluded and he started to leave the courtroom, another court officer told him, "[t]here's a warrant for your arrest. I need to detain you." At that point, defendant started to push past two court officers, and he was tackled to the ground. In the course of this struggle, a court officer [*2] suffered physical injuries. The police, who were already on the scene, immediately placed defendant under arrest pursuant to the arrest warrant. A peace officer, of which a uniformed court officer is one type ( see CPL 2.10 [21] [a]), "in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody" (Penal Law § 35.30 [1]). Here, the court officers had the requisite reasonable belief that defendant had committed an offense by virtue of their knowledge that an arrest warrant had been issued. That said, they possessed the lawful authority under Penal Law § 35.30 (1) to utilize physical force to temporarily detain defendant in order to facilitate the arrest by the police who were present for that purpose ( compare People v Borrero , 118 AD2d 345, 350 [1st Dept 1986] [holding that, under a similar statutory provision pertaining to private citizens, an individual had the authority to detain another, using physical force, until police arrived]). In so holding, we are mindful that, given the wide-ranging contexts in which they serve ( see CPL 2.10 [1]-[86]), peace officers are acknowledged to have "special duties" that are unique to "the specialized nature of [an officer's] particular employment" (CPL 2.20 [2]). In our view, the temporary detention carried out in this case was not inconsistent with the specialized nature of a uniformed court officer's particular employment. Based upon the foregoing, defendant's argument that there is a legal impediment to his conviction is without merit. Clark, J.P., Pritzker, Reynolds Fitzgerald and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: As relevant here, "[a] person is guilty of assault in the second degree when . . . [w]ith intent to prevent a peace officer . . . from performing a lawful duty, . . . he or she causes physical injury to such peace officer" (Penal Law § 120.05 [3]). "To sustain such a conviction, the People must establish that the injured [peace officer] was engaged in a lawful duty at the time of the assault by the defendant" ( People v Molineaux , 156 AD3d 1250 , 1251 [3d Dept 2017] [internal quotation marks and citations omitted], lv denied 31 NY3d 1085 [2018]).

[Assistant]
Waiver of appeal does not foreclose appellate review of defendant's claim
of legal impediment to prosecution. Such a contention is akin to a claim of
a jurisdictional defect, which is not foreclosed by an appeal waiver.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Vargas 2024 NY Slip Op 03200 [42 NY3d 983] June 13, 2024 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 27, 2024 [*1] The People of the State of New York, Appellant, v Nolberto Contreras Vargas, Respondent. Decided June 13, 2024 People v Vargas , 211 AD3d 1046 , reversed. APPEARANCES OF COUNSEL Melinda Katz , District Attorney , Kew Gardens ( Joseph M. DiPietro of counsel), for appellant. Patricia Pazner , Appellate Advocates , New York City ( Anna Jouravleva of counsel), for respondent. {**42 NY3d at 983} OPINION OF THE COURT Memorandum. {**42 NY3d at 984} The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on appeal to that Court. Following an incident in which defendant allegedly attacked his wife with a knife, severely injuring her in both the neck and chest, defendant was charged with attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the first degree (Penal Law § 120.10 [1] [defendant, "(w)ith intent to cause serious physical injury to another person, . . . causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument"]). At trial, the primary disputed issue was intent. The jury convicted defendant of first-degree assault and acquitted him of attempted murder. The Appellate Division reversed and ordered a new trial, concluding that police testimony recounting out-of-court statements by the victim's daughter describing the attack violated defendant's Sixth Amendment right to confrontation, and the admission was not harmless (211 AD3d 1046 [2d Dept 2022]). The Court further noted that two other statements, one by a 911 caller stating that the victim had been stabbed and another by defendant's son indicating that defendant was the attacker, had been admitted in violation of the hearsay rule, but did not consider whether admission of those two statements was harmless. One Justice dissented, agreeing that the testimony recounting the daughter's statements violated the Confrontation Clause but concluding that the admission of all three statements was harmless. The dissenting Justice granted leave to appeal. [*2] [1] Before this Court, the parties primarily focus on whether the erroneous admission of testimony reflecting the daughter's statements was harmless. Applying the standard for constitutional errors, we conclude that it was. The evidence against defendant was overwhelming, particularly as it related to the critical issue of intent ( see People v Mairena , 34 NY3d 473 , 484-485 [2019], citing People v Crimmins , 36 NY2d 230, 241 [1975]). Properly admitted evidence demonstrated that the victim and her daughter fled the home seeking help immediately after the attack; one of them called defendant the "culprit" as he attempted to flee; defendant had to be physically subdued by a bystander until his arrest; both women told several witnesses that defendant "stabbed" the victim; the weapon used was a large, sharp knife; medical records reflect {**42 NY3d at 985} that the victim reported to hospital staff that her husband had stabbed her; and those records, as well as a treating physician's testimony, demonstrate that the victim sustained two serious knife wounds to the neck and chest, both over two inches in length and one of which was a direct stabbing so forceful that it fractured her breastbone. These facts leave no doubt that defendant acted with the intent to cause the victim serious physical injury. For that reason, the properly admitted evidence rendered the improper testimony recounting the daughter's description of the attack redundant and therefore harmless, as "there is no reasonable possibility that the error might have contributed to defendant's conviction" ( Crimmins , 36 NY2d at 237; see also People v Douglas , 4 NY3d 777 , 779 [2005]). [2] The errors in admission of statements by the 911 caller and defendant's son were also harmless and do not warrant a new trial. Because the statements supplied information properly provided to the jury through several testifying witnesses and the victim's medical records, there is no "significant probability . . . that the jury would have acquitted the defendant had it not been for" their admission ( Mairena , 34 NY3d at 485, quoting Crimmins , 36 NY2d at 242). Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Chief Judge Wilson and Judge Rivera dissent and vote to affirm for the reasons stated in the Appellate Division memorandum ( see People v Vargas , 211 AD3d 1046 [2d Dept 2022]). On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on appeal to that Court, in a memorandum.

[Assistant]
Police officer
should not have testified to daughter's description of the attack upon her
mother. But properly admitted evidence rendered the improper testimony
redundant, and therefore harmless. Conviction reinstated.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2024 NY Slip Op 05818 [42 NY3d 1049] November 21, 2024 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. [*1] The People of the State of New York, Respondent, v Brandon Williams, Appellant. Argued October 16, 2024; decided November 21, 2024 People v Williams , 204 AD3d 704 , affirmed. APPEARANCES OF COUNSEL Twyla Carter, The Legal Aid Society , New York City ( Steven R. Berko of counsel), and Latham & Watkins LLP , New York City ( Jonathan Lippman, Richard D. Owens, Sara Gail Prudenti, Caroline C. Marshall, Alon Handler, Juan M. Palacio Moreno and Lydia Franzek of counsel), for appellant. Melinda Katz, District Attorney , Kew Gardens ( Christopher J. Blira-Koessler and John M. Castellano of counsel), for respondent. {**42 NY3d at 1049} OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed. Assuming, without deciding, that the introduction of codefendant's statement was a Bruton error ( see Bruton v United States , 391 US 123 [1968]), any such error was harmless. The evidence of defendant's guilt, specifically the incriminating testimony of two acquaintances who were eyewitnesses to the {**42 NY3d at 1050} crime, was overwhelming and there is no reasonable possibility that the admission of codefendant's statement affected the verdict ( see People v Cedeno , 27 NY3d 110 , 121-122 [2016]; People v Hardy , 4 NY3d 192 , 198 [2005]; People v Crimmins , 36 NY2d 230, 241 [1975]). Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur. Order affirmed, in a memorandum.

[Assistant]
"Assuming, without deciding, that the introduction of codefendant’s
statement was a Bruton error, any such error was harmless. The evidence
of defendant’s guilt, specifically the incriminating testimony of two
acquaintances who were eyewitnesses to the crime, was overwhelming and
there is no reasonable possibility that the admission of codefendant’s statement affected the verdict.
"


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Wendy B.-S. 2024 NY Slip Op 04003 [229 AD3d 1317] July 26, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Wendy B.-S., Appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan Hutchison of counsel), for defendant-appellant. Michael J. Keane, Acting District Attorney, Buffalo (Harmony A. Healy of counsel), for respondent. Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), dated September 17, 2020. The order denied the application of defendant for resentencing pursuant to CPL 440.47. It is hereby ordered that the order so appealed from is unanimously affirmed. Memorandum: Defendant was convicted in November 1989, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1]) and two counts of intimidating a victim or witness in the first degree (§ 215.17 [1], [2]). The conviction arose from defendant's conduct in aiding her then-husband in the bludgeoning death of a friend, who had been cooperating with authorities by implicating defendant and her husband in other crimes, by calling the friend and luring him to the house where he was killed. Defendant was sentenced to concurrent terms of incarceration aggregating to 25 years to life. We affirmed defendant's judgment of conviction on direct appeal ( People v Smythe , 172 AD2d 1028 [4th Dept 1991], lv denied 78 NY2d 927 [1991]), and we later also affirmed the husband's judgment of conviction arising from the murder ( People v Smythe , 210 AD2d 887 [4th Dept 1994], lv denied 85 NY2d 943 [1995]). Defendant remained incarcerated in April 2020 when she applied for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) ( see CPL 440.47; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1), but she was subsequently released to parole supervision in September 2020. Supreme Court thereafter denied her application for resentencing pursuant to the DVSJA, and defendant now appeals as of right ( see CPL 440.47 [3] [a]). We affirm. "The DVSJA, without diminishing the gravity of an offense, permits courts to impose alternative, less severe sentences in certain cases involving defendants who are victims of domestic violence" ( People v Fisher , 221 AD3d 1195 , 1196 [3d Dept 2023], lv denied 41 NY3d 1001 [2024]; see CPL 440.47; Penal Law § 60.12; People v Vilella , 213 AD3d 1282 , 1283 [4th Dept 2023], lv denied 39 NY3d 1157 [2023]). A defendant who is confined while serving a sentence of a certain length for an offense committed prior to the effective date of the DVSJA and is eligible for an alternative sentence may request to apply for resentencing in accordance with Penal Law § 60.12 ( see CPL 440.47 [1] [a]; People v Shawn G.G. , 225 AD3d 1246 , 1247 [4th Dept 2024]). If the court finds that the defendant has met the requirements to apply for resentencing, the court must notify the defendant that they may submit an application for resentencing ( see CPL 440.47 [1] [c]). An application for resentencing must include certain pieces of evidence pursuant to the provisions of CPL 440.47 (2) (c) and, if the court finds that the defendant has complied with those provisions, it must "conduct a hearing to aid in making its determination of whether the applicant should be resentenced in accordance with [Penal Law § 60.12]" (CPL 440.47 [2] [e]; see Fisher , 221 AD3d at 1196). The court may impose an alternative sentence where it determines, upon a preponderance of the evidence following the [*2] hearing, that "(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abuse was a significant contributing factor to the defendant's criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh" (Penal Law § 60.12 [1]; see Fisher , 221 AD3d at 1196-1197; People v T.P. , 216 AD3d 1469 , 1471-1472 [4th Dept 2023]; People v Addimando , 197 AD3d 106 , 112 [2d Dept 2021]). There is no dispute in this case that, at the time of the underlying offenses, defendant was "a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by" the husband (Penal Law § 60.12 [1] [a]; see T.P. , 216 AD3d at 1471-1472). As the court properly determined and defendant correctly contends, there is ample evidence in the record that the husband, who was manipulative and controlling, subjected defendant to numerous acts of physical brutality, as well as emotional and psychological abuse, including threatening to harm defendant's young son from another relationship. Defendant thus indisputably fulfilled the first prong of the statutory analysis ( see § 60.12 [1] [a]). The court nonetheless further determined under the second prong of Penal Law § 60.12 (1) that the abuse suffered by defendant was not a significant contributing factor to her criminal behavior related to the victim's death. We agree with defendant that the court erred in that regard. In evaluating whether the abuse was "a significant contributing factor to the defendant's criminal behavior" (§ 60.12 [1] [b]), a court should "consider the cumulative effect of the abuse together with the events immediately surrounding the crime, paying particular attention to the circumstances under which [the] defendant was living and adopting a 'full picture' approach in its review" ( People v Smith , 69 Misc 3d 1030 , 1038 [Erie County Ct 2020]; see People v Brenda WW. , 222 AD3d 1188 , 1192-1193 [3d Dept 2023], citing Smith , 69 Misc 3d at 1038; People v Burns , 207 AD3d 646 , 648-649 [2d Dept 2022]). Here, we agree with defendant that the cumulative effect of the husband's abuse, along with the events immediately surrounding the crimes, demonstrates that the abuse was a significant contributing factor to defendant's conduct in calling the victim and luring him to the house. The husband had repeatedly and violently abused defendant throughout their relationship, and defendant feared for the safety of herself and her son. The record establishes that defendant—whether out of fear of harm at the hands of the husband or as the result of actual threats and physical harm inflicted on the day of the murder—complied with the husband's demand that she call the victim, with whom she was a close friend, and invite him to the house. In sum, upon "[c]onsidering the cumulative effect of . . . defendant's abuse at the hands of [the husband], together with the events immediately surrounding the crimes, and paying particular attention to the circumstances under which . . . defendant was living," we conclude that "the preponderance of the evidence demonstrates that the [husband's] abuse was a [significant] contributing factor to [defendant's criminal behavior related to] the murder of [the victim]" ( Burns , 207 AD3d at 648-649). None of the court's reasons for reaching a contrary conclusion survive scrutiny. First, contrary to the court's conclusion that defendant's alcohol and drug abuse at the time of the crimes established that her conduct could not be attributed to the abuse, we conclude that "such factors do not negate the aforementioned history of abuse suffered by defendant and whether it played a significant role in her behavior" ( Brenda WW. , 222 AD3d at 1192). Second, the court's determination that defendant could not credibly claim that the domestic abuse she endured was a significant contributing factor to her criminal behavior because she had, over the years, given minimally inconsistent accounts of her role in the victim's death, cannot be reconciled with the modern understanding of the effects of domestic violence as both embodied in the DVSJA and emphasized by defendant's trauma counselor at the hearing ( see People v Liz L. , 221 AD3d 1288 , 1291 [3d Dept 2023]; see generally Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors' Credibility and Dismissing Their Experiences , 167 U Pa L Rev 399, 405-406 [2019]). Third, the court's reliance on the trial court's pontification during the original sentencing proceeding that defendant had manipulated and controlled the husband, not the other way around, is misplaced because, as defendant contends, that interpretation of the relationship lacks support in the record before us and appears grounded in "outdated notions [*3] regarding domestic violence issues" ( Addimando , 197 AD3d at 117). Nevertheless, we conclude that defendant is not entitled to resentencing pursuant to the DVSJA because, under the third prong of the statutory analysis, the original sentence is not "unduly harsh" in light of the "nature and circumstances of the crime and the history, character and condition of the defendant" (Penal Law § 60.12 [1] [c]; see Fisher , 221 AD3d at 1197-1198). The crimes for which defendant was convicted—i.e., aiding her husband in the fatal bludgeoning of the victim as reprisal for and prevention of the victim's cooperation with authorities in implicating defendant and the husband in other crimes—were as brutal as they were reprehensible ( see Fisher , 221 AD3d at 1197-1198). Although defendant has been somewhat inconsistent over the years about her precise knowledge of the husband's intentions for the victim at the time she placed the call to lure him to the location, the record before us establishes by a preponderance of the evidence that defendant knew, even if indirectly, that the victim was going to be killed. Additionally, despite some admirable accomplishments and engagement in services while incarcerated, defendant committed a remarkably extensive number of disciplinary violations while in prison, including for drug use. Inasmuch as defendant is no longer incarcerated and has been released to lifetime parole supervision, she seeks resentencing solely for the purpose of shortening the period—and ultimately relieving her—of postrelease supervision. However, defendant's criminal history, both before and during the relationship with the husband, and her continued difficulty in conducting herself appropriately as evinced by her extensive disciplinary history throughout her incarceration, coupled with her apparent success thus far while on supervision in the community, suggest that supervision continues to serve important purposes in defendant's case ( cf. People v S.M. , 72 Misc 3d 809 , 816 [Erie County Ct 2021]). Thus, although defendant has been released to parole supervision, given her criminal and disciplinary history as well as her need for services, we conclude that, contrary to defendant's contention, lifetime parole supervision does not render her sentence unduly harsh and she should not be resentenced pursuant to the DVSJA ( see People v Rangel , 195 AD3d 541 , 542 [1st Dept 2021], lv denied 37 NY3d 1098 [2021]). Finally, we note that our affirmance of the order on the aforementioned ground does not violate CPL 470.15 (1). The Court of Appeals has construed that statute as "a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court" ( People v LaFontaine , 92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]; see People v Butler , 41 NY3d 186 , 199 [2023]; People v Nicholson , 26 NY3d 813 , 825 [2016]). The statute thus "bars [the Appellate Division] from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court" ( People v Concepcion , 17 NY3d 192 , 195 [2011]; see Nicholson , 26 NY3d at 825). Consequently, " LaFontaine and its progeny preclude our review of an entirely distinct alternative ground for affirmance which the court of first instance did not decide adversely to the appellant" ( People v Garrett , 23 NY3d 878 , 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]). Critically, however, in cases involving consideration of "a single multipronged legal ruling" rather than a "separate and analytically distinct" alternative ground for affirmance that the trial court did not decide adversely to the appellant, LaFontaine and its progeny do not preclude our review of all aspects of the ruling even when the trial court did not address a particular prong thereof ( id. ; see People v Reynolds , 211 AD3d 1493 , 1494 [4th Dept 2022], lv denied 39 NY3d 1079 [2023]; People v Case , 197 AD3d 985 , 986 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]). Here, the court's determination whether defendant should be resentenced pursuant to the DVSJA ( see CPL 440.47; Penal Law § 60.12) involves "a single multipronged legal ruling" ( Garrett , 23 NY3d at 885 n 2; see Penal Law § 60.12 [1]; Brenda WW. , 222 AD3d at 1193; Liz L. , 221 AD3d at 1290-1291; Addimando , 197 AD3d at 111). Thus, our determination affirming the order on the ground that defendant did not fulfill the third prong of the statutory analysis, which the court did not address given its determination on the second prong, does not constitute "the type of appellate overreaching prohibited by CPL 470.15 (1)" because such affirmance is not "on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor" ( Nicholson , 26 NY3d at 826; see Garrett , 23 NY3d at 885 n 2; Reynolds , 211 AD3d at 1494; Case , 197 AD3d at 986). Present—Smith, J.P., Bannister, Montour, Greenwood and Nowak, JJ.

[Assistant]
[W]hether a defendant should be resentenced pursuant to the DVSJA (see
CPL 440.47; Penal Law § 60.12) involves 'a single multipronged legal
ruling' [citations omitted].
" Consequently, the Appellate Division is not
foreclosed from affirming the order denying relief on the ground that
defendant did not fulfill the third prong of the statutory analysis, i.e., was
the sentence unduly harsh [Penal Law § 60.12 (1) (c)] — which the trial
court did not reach because it concluded that the domestic abuse was not
"a significant contributing factor to the defendant's criminal behavior"
[Penal Law 60.12 (1) (b)]. Such an affirmance "is not 'on grounds
explicitly different from those of the trial court, or on grounds that were
clearly resolved in a defendant's favor'[citations omitted].
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Kirkey 2024 NY Slip Op 06478 [233 AD3d 1510] December 20, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Christopher Kirkey, Appellant. James Eckert, Rochester, for defendant-appellant. Christine K. Callanan, District Attorney, Lyons (R. Michael Tantillo of counsel), for respondent. Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered May 25, 2023. The judgment convicted defendant upon a jury verdict of driving while intoxicated (two counts), driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, aggravated vehicular homicide, vehicular manslaughter in the first degree, and manslaughter in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of driving while intoxicated as a misdemeanor (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [b] [i]), one count of aggravated vehicular homicide (Penal Law § 125.14 [4]), and two counts of manslaughter in the second degree (§ 125.15 [1]). Defendant contends that the verdict is against the weight of the evidence with respect to defendant's identity as the driver of the vehicle that crashed into a bridge abutment and ended up submerged in a creek, killing the other two occupants of the vehicle, a male and a female. The evidence at trial established that the vehicle belonged to defendant, and testimony and video surveillance showed him driving the vehicle approximately 10 minutes before the accident occurred ( see generally People v Kenny , 283 AD2d 950, 951 [4th Dept 2001], lv denied 96 NY2d 903 [2001]). After the accident, defendant was found on the bank of the creek on the driver's side of the vehicle, and the front driver's side door was open. The female occupant was found still buckled in the front passenger seat, and the body of the male occupant was recovered from the creek the following morning. The front right side of the vehicle struck the bridge abutment, and a reconstruction expert testified that such an impact would have accelerated the occupants of the vehicle toward the direction of that force. The evidence established that, although airbags in the vehicle had deployed, the vehicle's steering wheel was bent forward on the right side. The expert explained that, in light of how the steering wheel was bent, the driver could have sustained injuries to their left side from hitting the steering wheel. The female and male occupants sustained right-side injuries, and defendant sustained injuries to his chest and left side ( see People v Pascuzzi , 173 AD3d 1367 , 1372-1373 [3d Dept 2019], lv denied 34 NY3d 953 [2019]; People v Herrera , 138 AD3d 1141 , 1142-1143 [2d Dept 2016], lv denied 28 NY3d 971 [2016]). There was also testimony from a witness that the male occupant did not drive and that defendant would not let anyone borrow his vehicle. Additionally, swabbings from the steering wheel and subsequent DNA analysis showed two male contributors, with the major contributor being defendant and the male occupant being excluded as a possible contributor. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to defendant's identity as the driver of the vehicle ( see People v Maricevic , 52 AD3d 1043 , 1046 [3d Dept 2008], lv denied 11 NY3d 790 [2008]; see generally People v Bleakley , 69 [*2] NY2d 490, 495 [1987]). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded ( see generally Bleakley , 69 NY2d at 495). Defendant next contends that he was denied an effective summation when County Court sustained the People's objection and held that it agreed that defense counsel had mischaracterized a witness's testimony. That contention is unpreserved for our review inasmuch as defendant did not object to the court's ruling or comments as depriving him of his right to an effective summation ( see People v Gordon , 181 AD3d 1299 , 1300 [4th Dept 2020], lv denied 35 NY3d 1027 [2020]). In any event, his contention is without merit inasmuch as defense counsel had mischaracterized the witness's testimony regarding whether the male occupant's facial injuries were consistent with injuries sustained from an airbag ( see People v Bistonath , 216 AD2d 478, 479 [2d Dept 1995], lv denied 86 NY2d 790 [1995]; see generally People v Smith , 16 NY3d 786 , 787-788 [2011]; People v Ashwal , 39 NY2d 105, 109 [1976]). In addition, defense counsel was not prevented from making the general argument that an airbag could not be excluded as a possible cause of the male occupant's facial injuries ( see People v Kimmy , 137 AD3d 1723 , 1723-1724 [4th Dept 2016], lv denied 27 NY3d 1134 [2016]). Defendant's contention that two instances of prosecutorial misconduct during summation denied him a fair trial is not preserved for our review ( see People v Moorhead , 224 AD3d 1225 , 1227 [4th Dept 2024], lv denied 41 NY3d 1003 [2024]; People v King , 224 AD3d 1313 , 1314 [4th Dept 2024], lv denied 41 NY3d 1019 [2024]). In any event, we conclude that defendant's contention is without merit inasmuch as the alleged instances of prosecutorial misconduct constituted fair comment on the evidence ( see People v Townsend , 171 AD3d 1479 , 1481 [4th Dept 2019], lv denied 33 NY3d 1109 [2019]). Moreover, even assuming, arguendo, that the prosecutor mischaracterized the testimony, we conclude that the prosecutor's remarks were not so pervasive or egregious as to deny defendant a fair trial ( see People v Williams , 228 AD3d 1249 , 1249-1250 [4th Dept 2024]; King , 224 AD3d at 1314; People v Longo , 212 AD3d 471 , 472 [1st Dept 2023], lv denied 40 NY3d 935 [2023]). Defendant further contends that he was denied effective assistance of counsel. Contrary to defendant's contention, a review of the voir dire transcript in totality does not support his claim that defense counsel permitted defendant himself to choose the jury ( see People v Richardson , 143 AD3d 1252 , 1254-1255 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]; cf. People v McKenzie , 142 AD3d 1279 , 1280 [4th Dept 2016]) or that defense counsel was not actively participating in the process ( cf. People v Bell , 48 NY2d 933, 934 [1979], rearg denied 49 NY2d 802 [1980]). We further reject defendant's claim that defense counsel was ineffective in failing to offer a legal basis for seeking the admission of certain allegedly exculpatory statements made by defendant or in failing to object when the court stated that defense counsel had mischaracterized certain testimony during summation. It is well settled that "[t]here 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 [2005], quoting People v Stultz , 2 NY3d 277 , 287 [2004], rearg denied 3 NY3d 702 [2004]). Defendant's allegedly exculpatory statements were self-serving and constituted inadmissible hearsay ( see People v Moses , 197 AD3d 951 , 954 [4th Dept 2021], lv denied 37 NY3d 1097 [2021], denied reconsideration 37 NY3d 1163 [2022]) and, as noted above, defense counsel had indeed mischaracterized a witness's testimony in summation. We reject defendant's further claim that defense counsel mishandled the issue of DNA evidence and was ineffective in eliciting certain testimony of a witness on cross-examination. " '[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings" ( People v Benevento , 91 NY2d 708, 712 [1998], quoting People v Rivera , 71 NY2d 705, 709 [1988]), and defendant failed to meet that burden here ( see People v Francis , 206 AD3d 1605 , 1606 [4th Dept 2022], lv denied 38 NY3d 1133 [2022]; People v Conley , 192 AD3d 1616 , 1620 [4th Dept 2021], lv denied 37 NY3d 1026 [2021]). In addition, inasmuch as we conclude that there was no prosecutorial misconduct during summation, we further conclude that defense counsel was not ineffective for failing to object to the alleged improprieties ( see Townsend , 171 AD3d at 1481). We have reviewed the remaining claims of ineffective assistance of counsel, and we conclude that, because "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional [*3] requirement [has] been met" ( People v Baldi , 54 NY2d 137, 147 [1981]). We reject defendant's contention that the court erred in not making an inquiry into defendant's complaints about defense counsel at the close of the People's proof. Although defendant made complaints about the proof that was introduced or not introduced, defendant did not request new counsel and thus "it cannot be said that the court erred in failing to conduct an inquiry to determine whether good cause was shown to substitute counsel" ( People v Singletary , 63 AD3d 1654 , 1654 [4th Dept 2009], lv denied 13 NY3d 839 [2009]; see People v Martinez , 166 AD3d 1558 , 1558-1559 [4th Dept 2018]). In any event, " 'the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit' " ( Martinez , 166 AD3d at 1559; see Singletary , 63 AD3d at 1654). Present—Smith, J.P., Curran, Montour, Greenwood and Keane, JJ.

[Assistant]
Affirmed. Defendant was not denied an effective summation when County
Court sustained the People's objection and held that it agreed that defense
counsel had mischaracterized a witness's testimony. Contention was
unpreserved and, in any event, his contention was without merit inasmuch
as defense counsel had mischaracterized the witness's testimony regarding
whether the male occupant's facial injuries were consistent with injuries
sustained from an airbag. In addition, defense counsel was not prevented
from making the general argument that an airbag could not be excluded as
a possible cause of the male occupant's facial injuries.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Grady 2024 NY Slip Op 06628 [233 AD3d 1369] December 26, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Neshad Grady, Also Known as Moo Moo, Appellant. Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent. McShan, J. Appeals (1) from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered January 10, 2020, in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree, and (2) from a judgment of said court, rendered January 10, 2020, in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree. In November 2018, defendant was charged by indictment with one count of murder in the second degree and one count of criminal possession of a weapon in the second degree stemming from a July 2018 shooting in the City of Albany. Defendant was also indicted for criminal possession of a weapon in the second degree (count 3) stemming from a separate incident in November 2018. Following a jury trial on counts 1 and 2, defendant was convicted as charged. Defendant subsequently pleaded guilty to count 3 and was thereafter sentenced, as a second violent felony offender, on both the jury verdict and the subsequent guilty plea. As to the jury verdict, defendant was sentenced to a prison term of 25 years to life for murder in the second degree and a concurrent prison term of 15 years, to be followed by five years of postrelease supervision, for criminal possession of a weapon in the second degree. As to the plea, defendant was sentenced to a prison term of 10 years, to be followed by five years of postrelease supervision, to run concurrently to the sentence on the jury verdict. Defendant appeals. [FN1] We affirm. Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, primarily contending that the People failed to establish his identity as the perpetrator of the shooting beyond a reasonable doubt, which in turn demonstrates a lack of evidence that he possessed a loaded firearm. Relevant here, "[a] person is guilty of murder in the second degree when . . . [w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person" (Penal Law § 125.25 [1]). "A person is guilty of criminal possession of a weapon in the second degree when . . . such person possesses any loaded firearm" outside of their home or business (Penal Law § 265.03 [3]). "[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime" ( People v Shabazz , 211 AD3d 1093 , 1095 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1113 [2023]; accord People v Alexander , 231 AD3d 1310 , 1311 [3d Dept 2024]). The evidence at trial established that, shortly after midnight on the night of the shooting, defendant was present in the convenience store of a gas station located at the corner of Quail Street and Clinton Avenue, adjacent to the site of the shooting. Footage from a City-owned camera that was [*2] set up at the intersection shows the victim in his vehicle pulling into the gas station, where he briefly stopped at a pump without exiting. Meanwhile, surveillance footage from the gas station combined with the aforementioned footage on the City-owned camera show an individual dressed in the same attire as defendant leave the parking lot and look back at the victim's vehicle momentarily before entering a house that belonged to a member of defendant's family. At that point, the video footage depicts the victim pulling out of the gas station and turning onto Clinton Avenue and then onto Quail Street. The victim's cousin testified that he was standing on Quail Street when he observed the victim's vehicle approaching, at which point he flagged the victim down and they engaged in a brief conversation while he stood on the passenger side of the vehicle. The video footage shows that, just before the victim stopped his vehicle, an individual wearing the same attire as defendant walks out of the home of defendant's family member. According to the cousin, he observed an individual approaching the vehicle and, before the cousin could warn the victim, the individual began firing a weapon into the vehicle, prompting the cousin and other bystanders to flee. The cousin identified defendant at trial as the shooter, stating that he knew him from the neighborhood. The cousin had also made a previous identification of defendant to law enforcement from a photo array that was introduced into evidence. After the shooting, the perpetrator fled through an alley located between the parking lot of the gas station and the home of defendant's family member. The forensic evidence at trial established that the victim suffered three gunshot wounds during the encounter, two of which were minor and the third, which perforated his lung and aorta causing a blood clot in his chest, proved fatal. Law enforcement also recovered shell casings near the victim's vehicle, but the weapon used in the shooting was never found. Based upon our review, we find that, "when construing the evidence in the light most favorable to the People as we must, a rational person could conclude that the shooter's identity was sufficiently proven to be defendant" ( People v Slivienski , 204 AD3d 1228 , 1234 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]). The various different video recordings introduced at trial placed defendant near the scene and, coupled with the testimony of the victim's cousin identifying defendant as the shooter, was sufficient to meet the People's burden to establish defendant's identity as well as the fact that he possessed a loaded firearm during the encounter ( see People v Calafell , 211 AD3d 1114 , 1117 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]; People v Williams , 182 AD3d 776 , 778 [3d Dept 2020], lv denied 35 NY3d 1071 [2020]). As to defendant's contention that the evidence against him was largely circumstantial beyond the unreliable testimony of the victim's cousin, that fact reasonably [*3] allows for a different verdict, thus satisfying the first step in our weight of the evidence review ( see People v Terry , 196 AD3d 840 , 846 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]; People v Malloy , 166 AD3d 1302 , 1307 [3d Dept 2018], affd 33 NY3d 1078 [2019]). However, defendant does not suggest that the cousin's testimony was incredible as a matter of law, and the various factors implicating his credibility—including, among other things, that his testimony and cooperation with law enforcement was compelled pursuant to a material witness warrant, that the People had offered relocation assistance and that he was related to the victim—were fully explored at trial and placed squarely before the jury for its consideration. Further, the jury had the opportunity to assess the deficiencies in the People's case that defendant now highlights on appeal, including the lack of DNA evidence tying defendant to the crime and the possibility that the weapon used in the shooting may have been used in a separate robbery that did not involve defendant. Accordingly, giving deference to the jury's credibility determinations and "weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn" from the various forms of evidence admitted at trial, we conclude that the jury's verdict reflecting that defendant was the shooter and in possession of a loaded firearm is not contrary to the weight of the evidence ( People v Gertz , 204 AD3d 1166 , 1167 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1070 [2022]; see People v Nellis , 217 AD3d 1056 , 1059 [3d Dept 2023]; People v Smith , 174 AD3d 1039 , 1043 [3d Dept 2019], lv denied 35 NY3d 1097 [2020]). Defendant also contends that the People improperly presented evidence of defendant's pretrial silence during a recorded interview with law enforcement. Defendant acknowledges, however, that his contention is unpreserved ( see People v Clarke , 110 AD3d 1341 , 1345 [3d Dept 2013], lv denied 22 NY3d 1197 [2014]), and asks, among other things, that we deem his counsel ineffective based upon the failure to lodge this specific objection to the admission of the recording. As to the underlying merits of that contention, "[i]t is a well-established principle of state evidentiary law that evidence of a defendant's pretrial silence is generally inadmissible" ( People v Williams , 25 NY3d 185 , 190 [2015]) due in large part to the "substantial risk that jurors might construe such silence as an admission and draw an unwarranted inference of guilt" ( People v Chapman , 182 AD3d 862 , 865 [3d Dept 2020]). After defendant was read and voluntarily waived his Miranda rights, detectives questioned him for approximately three hours. During the time periods identified by defendant in his brief, [FN2] the two detectives conducting the interview generally engaged in several well-established interviewing tactics, including various attempts to build rapport [*4] with defendant by expressing understanding for his circumstances and sympathy for his potential motives for committing the shooting. That theme is consistent throughout the entire interview, during which defendant provided an inculpatory admission that he was the individual inside the convenience store and was generally responsive to the detectives inquiries, but otherwise consistently denied any knowledge of or involvement with the shooting ( see People v Brown , 140 AD3d 1740 , 1741 [4th Dept 2016], lv denied 28 NY3d 1026 [2016]; compare People v Chapman , 182 AD3d at 866). To this end, it is apparent that the moments depicting defendant's silence that appear in the recording are generally brief and, contextually, are precipitated by the interviewing officers asking questions, providing various narratives of the events from that evening, showing defendant images or video footage or encouraging him to tell the truth. More significantly, the record establishes that the People did not emphasize defendant's silence during their case-in-chief, and the People's brief reference in summation to defendant's demeanor during the interview does not indicate that the People were attempting to highlight or infer that defendant had refused to answer any questions from the detectives ( compare People v Williams , 25 NY3d at 192; People v Conyers , 52 NY2d 454, 458 [1981]; People v Chapman , 182 AD3d at 866). Accordingly, through that lens, we do not find that counsel's failure to object to the introduction of any portion of defendant's recorded interview on the grounds of selective silence rendered his representation ineffective ( see People v Johnson , 225 AD3d 927 , 935-936 [3d Dept 2024], lv denied 42 NY3d 927 [2024]; People v Rivera , 212 AD3d 942 , 949 [3d Dept 2023], lv denied 39 NY3d 1113 [2023]; see also People v Jenkins , 198 AD3d 488 , 489 [1st Dept 2021], lv denied 37 NY3d 1146 [2021]). [FN3] Finally, we are unpersuaded that defendant's sentence is unduly harsh or excessive. Considering defendant's criminal history, his failure to demonstrate any remorse for his criminal behavior and the violent nature of the crime, we decline his invitation to modify his sentence ( see People v Burton , 215 AD3d 1054 , 1064 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v McGill , 207 AD3d 996 , 997 [3d Dept 2022], lv denied 39 NY3d 987 [2022]). Aarons, J.P., Pritzker, Ceresia and Mackey, JJ., concur. Ordered that the judgments are affirmed. Footnotes Footnote 1: Although defendant's notice of appeal encompasses the judgments of conviction regarding both the jury verdict and the guilty plea, he has abandoned any challenge to the judgment of conviction stemming from the guilty plea by failing to raise any contentions related thereto in his brief ( see People v Shuler , 231 AD3d 1285 , 1286 [3d Dept 2024]). Footnote 2: Although the People represent that only one segment of the interview identified by defendant was shown to the jury, that is not entirely clear from the record. Certain portions of the redacted recording, which was admitted in its entirety, were published at two different points during trial. The first instance in which the recording was published is accompanied by a clear reference to the time frame of the recording being played. However, the second time that the recording was published is less clear as to how much of the recording was played. Specifically, although there is a clear indication as to when the video was started and stopped, the witness examination that ensues between those points suggests that the recording was paused at various intervals and, to that end, is unclear as to whether any portions of the recording were skipped. In any event, reviewing each of the claimed time frames identified by defendant that fall within those outer limits, we find no merit to his contention. Footnote 3: Defendant does not contend that any other aspect of his representation was deficient and, based upon our review, we are satisfied that counsel's efforts, as a whole, "were more than sufficient to establish that defendant received meaningful representation" ( People v Mercer , 221 AD3d 1259 , 1260 n [3d Dept 2023], lv denied 41 NY3d 1003 [2024]).

[Assistant]
Trial attorney's failure to object at trial did not constitute ineffective
assistance of counsel. Generally, the prosecution may not introduce
evidence of defendant's silence when questioned. Here during an almost
three-hour police recorded interview, there were a few minutes of silence
from defendant when the police were questioning him. The prosecution
did not emphasize that silence in their case in chief and the prosecutor's
remark during summation about the defendant's demeanor did not
highlight defendant's periods of silence or indicate that defendant refused
to answer the officer's questions.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Wendover 2024 NY Slip Op 06386 [233 AD3d 1261] December 19, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] (December 19, 2024) The People of the State of New York, Respondent, v William Wendover III, Appellant. William V. O'Leary, Albany, for appellant. Christopher Liberati-Conant, District Attorney, Hudson (Kathleen Anderson of counsel), for respondent. Egan Jr., J.P. Appeal from a judgment of the County Court of Columbia County (Richard M. Koweek, J.), rendered October 18, 2016, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child (two counts), promoting a sexual performance by a child, criminal solicitation in the third degree, sexual abuse in the first degree (two counts) and criminal sexual act in the first degree (two counts). The underlying facts are more fully set forth in our prior decisions addressing the appeals of defendant's three codefendants ( see People v Van Alphen , 195 AD3d 1307 [3d Dept 2021], lv denied 37 NY3d 1061 [2021]; People v Shackelton , 177 AD3d 1163 [3d Dept 2019], lv denied 34 NY3d 1162 [2020]; People v Van Alphen , 167 AD3d 1076 [3d Dept 2018], lv denied 32 NY3d 1210 [2019]). Briefly, defendant and his codefendants were charged with offenses relating to their sexual abuse and exploitation of children over the course of several years. The charges against defendant, as set out in a superseding indictment filed in 2015, involved offenses relating to his conduct toward victim A (born in 2002), victim B (born in 2004) and victim C (born in 2006) at points between 2009 and 2011. The matter proceeded to a joint trial where defendant was convicted of charges that, for the most part, related to victims A and B. The jury specifically convicted defendant of two counts of predatory sexual assault against a child, two counts of course of sexual conduct against a child in the first degree, two counts of sexual abuse in the first degree and two counts of criminal sexual act in the first degree, one count for each of those offenses relating to victim A and one relating to victim B. Defendant was further found guilty of promoting a sexual performance by a child and criminal solicitation in the third degree, those offenses relating to his conduct toward all three victims. At sentencing, County Court dismissed the course of sexual conduct convictions as lesser included offenses of the predatory sexual assault against a child convictions. County Court then sentenced defendant, as a second felony offender, to prison terms of 25 years to life on the predatory sexual assault of a child convictions, 3 1/2 to 7 years on the promoting a sexual performance of a child conviction, 2 to 4 years on the criminal solicitation conviction, and seven years, to be followed by 15 years of postrelease supervision, on the sexual abuse in the first degree convictions. County Court directed that those sentences run consecutively to one another, and imposed concurrent terms of 25 years in prison, to be followed by 25 years of postrelease supervision, upon each of the criminal sexual act in the first degree convictions. Defendant appeals. We affirm. To begin, the verdict against defendant is entirely supported by the evidence. The proof presented at the joint trial has been discussed at length in our prior decisions but, without belaboring the point, victim A testified at trial to multiple [*2] incidents when he was between the ages of four and seven in which defendant and the codefendants violated him with various objects. Victim A stated that defendant, in particular, had "often" touched his penis, engaged in anal sex with him and victim B, and forced victim A and victim B to have sex with each other beginning when victim A was five years old and ending when he was seven years old. Victim A additionally testified that defendant made video recordings and took photographs of him and the other victims being abused. Victim B also testified and, although he was younger than victim A and provided fewer details as to what had occurred, gave an account that was largely consistent with that described by victim A. Notwithstanding defendant's claim to the contrary—and to the extent that the issue is preserved by his trial motion to dismiss—we have no difficulty concluding that the foregoing testimony, when viewed in the light most favorable to the People, is legally sufficient to support the verdict in all respects ( see People v Cuadrado , 227 AD3d 1174 , 1176 [3d Dept 2024], lv denied 42 NY3d 969 [2024]; People v May , 188 AD3d 1309 , 1310 [3d Dept 2020], lv denied 36 NY3d 974 [2020]; People v Van Alphen , 167 AD3d at 1078). Defendant goes on to suggest that the verdict is against the weight of the evidence, pointing, among other things, to the lack of physical evidence to establish that any abuse had occurred and various reasons to doubt the accuracy and reliability of the victims' testimony. Those issues were placed squarely before the jury, however, and the jury presumably took them into account when it acquitted defendant of charges relating to his use of a dildo on victims A and B and of all the charges solely relating to victim C. The jury nevertheless credited the testimony that defendant had committed almost all of the charged abuse and exploitation against victims A and B, and recorded the abuse of all three victims, during the relevant period. We defer to that assessment of credibility and, viewing the proof in a neutral light, are similarly satisfied that the verdict is not against the weight of the evidence ( see People v Cuadrado , 227 AD3d at 1177; People v Shackelton , 177 AD3d at 1163; People v Van Alphen , 167 AD3d at 1078). Defendant next contends that County Court abused its discretion in denying his request to sever his trial from that of his codefendants, but we do not agree. There is a strong public policy favoring joint trials of individuals whose offenses arise out of a common scheme or plan, but severance is required where a defendant's "defense is in irreconcilable conflict with" those of his or her codefendants and "there is a significant danger, as [all the] defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer [the] defendant's guilt" ( People v Mahboubian , 74 NY2d 174, 184 [1989]; see People v Cardwell , 78 NY2d 996, 997-998 [1991]; People v Murray , 155 AD3d 1106 , 1109 [3d Dept 2017 [*3] ], lv denied 31 NY3d 1015 [2018]). Defendant did not establish that such a conflict existed and, indeed, he and his codefendants essentially all advanced the defense that the victims were not credible and that the People had not proven that the alleged abuse had occurred ( see People v Smith , 89 AD3d 1126 , 1131 [3d Dept 2011], lv denied 18 NY3d 962 [2012]; People v Johnson , 296 AD2d 422, 423 [2d Dept 2002], lv denied 99 NY2d 537 [2002]). Moreover, while defendant complains that the jury may have been tempted to infer his guilt from evidence of the misbehavior of his codefendants and testimony as to what the victims told third parties about it, that evidence did not implicate him and its admission did "not afford [him] with an adequate ground for a severance" ( People v Peisahkman , 29 AD3d 352 , 353 [1st Dept 2006]; accord People v Moore , 223 AD3d 1085 , 1094 [3d Dept 2024], lv denied 41 NY3d 1003 [2024]). [FN*] County Court therefore properly determined that severance was not warranted. Defendant's remaining arguments do not demand extended discussion. We considered and rejected the argument advanced by defendant regarding the validity of the grand jury that handed up the superseding indictment against him when it was raised by one of his codefendants on appeal, and we decline defendant's invitation to revisit the issue ( see People v Van Alphen , 195 AD3d at 1309-1310). Similarly, the bulk of his arguments regarding the conduct of the trial were raised, considered and rejected upon a codefendant's appeal, and defendant points to nothing that would compel a different result here ( see id. at 1308-1313). Finally, defendant suggests that the jury charge deviates from the factual allegations in the superceding indictment as limited by the People's bill of particulars, but he leaves it far from clear as to exactly what portion of the charge he is challenging. In any event, while defendant did raise various objections to the jury charge, our review of the record does not reflect that any of the complained-of portions of the charge "constructively amend[ed] [the] indictment in such a way as to allow a variation in the theory of the prosecution" so as to constitute error ( People v Spratley , 144 AD2d 769, 770 [3d Dept 1988], lv denied 73 NY2d 896 [1989]; see People v Lee , 183 AD3d 1183 , 1190 [3d Dept 2020], lv denied 35 NY3d 1114 [2020]). To the extent that defendant's arguments are not addressed above, they have been examined and are lacking in merit. Pritzker, Lynch, Fisher and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: To the extent that defendant's related contention regarding the admissibility of the victims' out-of-court statements is preserved for our review, we reject it. The bulk of the out-of-court statements defendant points to were properly admitted for the nonhearsay purpose of explaining how the investigation that led to the charges against defendant and his codefendants unfolded ( People v Shackelton , 177 AD3d at 1164; see People v Cullen , 24 NY3d 1014 , 1016 [2014]), while other statements victim C made to an examining gynecologist were properly admitted under the hearsay exception for statements relevant to medical diagnosis and treatment ( see People v Spicola , 16 NY3d 441 , 451 [2011], cert denied 565 US 942 [2011]).

[Assistant]
There is a strong public policy in favor of joint trials of defendants whose
criminal conduct arises out of a common scheme or plan. Since defendant
did not establish that the codefendants' misconduct which did not implicate
him, would adversely influence the jury against him, he did not provide a
basis for a separate trial.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dixon 2024 NY Slip Op 05176 [42 NY3d 609] October 22, 2024 Troutman, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Kerbet Dixon, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Dixon , 211 AD3d 1030 , affirmed. {**42 NY3d at 612} OPINION OF THE COURT Troutman, J. The primary issue before us is whether this pro se defendant was denied his constitutional right to present a defense by the People's monitoring of the telephone calls that he made to his trial witnesses from jail. Under the unique circumstances of this case, we hold that defendant's constitutional right to present a defense was not violated. Because that contention and defendant's remaining contentions do not require reversal or modification, we affirm. I. In 2011, "A.M." and "J.H.," two children under 11 years old, accused defendant of repeatedly sexually assaulting them between 2007 and 2009, and a third complainant, "D.M.," accused defendant of raping her during that same period when she was under the age of 17. After one of the complainants disclosed that defendant had video-recorded the assaults and shown her child pornography during the course of the assaults, {**42 NY3d at 613} the police obtained a search warrant and seized defendant's home computers. Forensic examination of the computers revealed hundreds of images of child pornography and an encrypted, 10-gigabyte "TrueCrypt" container that the police were unable to access, even with the assistance of the Secret Service, FBI, and Department of Homeland Security. [FN1] The examination further [*2] revealed that Google alerts on one of the computers had been set for specific search terms eerily similar to aspects of the assaults. Proceedings commenced in March 2012 by the filing of an indictment charging defendant with, inter alia, one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) pertaining to the conduct against A.M., another count of course of sexual conduct against a child in the first degree ( see id .) pertaining to the conduct against J.H., two counts of rape in the third degree ( id. § 130.25) pertaining to the conduct against D.M., and 150 counts each of promoting and possessing a sexual performance by a child ( id. §§ 263.15, 263.16). Defendant posted bail and was released. After defendant unsuccessfully sought to sever the child pornography counts from the sexual assault counts pursuant to CPL 200.20, a second indictment charged him with an additional 334 counts of possessing a sexual performance by a child (Penal Law § 263.16). Upon the People's unopposed application, Supreme Court joined the second indictment for trial with the first. The court assigned counsel, as well as a computer expert and an investigator to assist the defense. Defendant eventually became dissatisfied with his assigned counsel, as he had with two prior attorneys, and, in July 2013, the court granted defendant's request to proceed pro se and continued defense counsel's assignment in the role of a "legal advisor." The trial commenced in late January 2014. The People's first few witnesses included A.M. and J.H, who were ages 11 and 13 at the time of trial. At one point during trial, on a Thursday, the court decided to take an extended lunch recess to give the People's next witness time to arrive from out of state. Defendant asked who that witness would be. The court asked the {**42 NY3d at 614} prosecutor if there were any concerns about witness intimidation. The prosecutor said that there were no such concerns and disclosed that the next witness would be D.M. After the recess, the court stated that D.M.'s arrival had been delayed and adjourned for the day. On Friday morning, the prosecutor brought the court's attention to a blog posted to the Internet Thursday evening from an IP address associated with the residence of defendant's sister, where defendant was living during trial. The blog made sexually disparaging comments about D.M., identified her by name as a complainant in a sex crime case, and included a picture of her in underwear. The prosecutor said that the picture was one that defendant had previously disclosed to the People. Defendant stated that he did not post the blog but knew who did. The prosecutor asked the court to remand defendant to jail, stating that the complainant was "devastated" and "in tears . . . waiting to be called to testify." The prosecutor added that defendant's actions "had the chilling effect" that defendant intended. The court concluded that defendant either posted the blog himself, or assisted the person who posted it, in violation of Civil Rights Law § 50-b. As a result, the court ordered defendant to be remanded. On Monday morning, defendant protested that it was difficult to prepare his witnesses for trial because he was in jail with no access to his files or witnesses, and he moved for a mistrial. The court stated that defendant had the assistance of his family and his legal advisor. The prosecutor added that defendant had been afforded not only a legal advisor but an investigator and a computer expert to assist him with preparation of his defense, at public expense. The People later called as a witness the detective and computer crimes specialist who conducted the forensic examination of defendant's computers, and he testified to the existence of the encrypted, 10-gigabyte TrueCrypt container that was installed on one of the computers, among other findings. After the testimony of two more witnesses, the People rested. Defendant's first witness was his daughter; the court gave defendant the opportunity to speak to her alone in the courtroom before she testified. It became apparent during the testimony that defendant intended to introduce in evidence a recorded conversation between his daughter and A.M., in which A.M. allegedly recanted her accusations. Although the daughter recorded the conversation two years earlier, the defense {**42 NY3d at 615} never disclosed the recording to the People, with the defendant insisting that he had just become aware of the recording himself. During voir dire, the daughter testified that she simply asked A.M. questions and told her to be honest. The daughter admitted, however, that she "had to record it a couple of times" and delete portions of it because A.M. was not answering the questions out loud at first. Though the court was "sure" that defendant was aware of the existence of the recording and that defendant's tactic was an "ambush," the court permitted the recording to be played for the jury. On cross-examination, the People asked the daughter about a phone conversation she had with the incarcerated defendant the week before. The daughter admitted, based on the contents of that conversation, that defendant was not only familiar with TrueCrypt but also that he gave her the password for it over the phone. The daughter further testified that defendant told her to come visit him in jail so that he could "grill" her before she [*3] testified. When the People sought to refresh the daughter's recollection about further details of the call, defendant agreed to allow the call to be played outside of the jury's presence and stipulated to the contents of the call. The People were permitted to call A.M. out of order to testify in rebuttal about the circumstances of her alleged recantation. She testified that, two years earlier (when she was nine years old) defendant's daughter drove her to Toys "R" Us to pick out toys for her Christmas list. While parked outside the store, the daughter questioned A.M. about her accusations against defendant. When A.M. gave the "[w]rong" answers, the daughter instructed A.M. to say "no" when the daughter shook her head and "yes" when the daughter nodded. A.M. testified that her statements on the recording were false and that her trial testimony was true. The defense case proceeded, with defendant at one point protesting that it was difficult to prepare his witness with the prosecutor listening to his calls. The court stated that when defendant wanted to speak to his witnesses, the court made the prosecutors leave the courtroom. Defendant protested that he still did not have enough time to prepare. The court responded that the case had "gone on for years": "You've had years to prepare the case." Defendant asked to adjourn for the weekend so he could have more time to prepare his witnesses. The court denied the request but noted that there was only one more day of scheduled testimony before the weekend and stated that it {**42 NY3d at 616} would revisit the matter the next morning. The next day, it was agreed that defendant would testify in his own defense. Defendant called one character witness to provide brief testimony and spent the rest of the day testifying in narrative fashion. On the morning of the last day of testimony, defendant objected to the People listening to his calls, arguing that it gave the People an "unfair advantage." The court rejected defendant's argument. The jury found defendant guilty of only one felony sexual assault count—course of sexual conduct against a child pertaining to conduct against J.H.—but also found him guilty of all 634 child pornography counts. The jury deadlocked on the count of course of sexual conduct against a child pertaining to A.M. and the counts of rape pertaining to D.M. At sentencing, defendant entered an Alford plea to the deadlocked counts in exchange for concurrent time and the court's promise that it would vacate the plea if the judgment were reversed on appeal. The Appellate Division affirmed the judgments (211 AD3d 1030 [2d Dept 2022]), and a Judge of this Court granted leave to appeal (40 NY3d 933 [2023]). II. "Criminal defendants must be afforded 'a meaningful opportunity to present a complete defense' " ( People v Deverow , 38 NY3d 157 , 164 [2022], quoting Crane v Kentucky , 476 US 683, 690 [1986]). That right, which encompasses the right to offer the testimony of witnesses, is "a fundamental element of due process of law" ( Washington v Texas , 388 US 14, 19 [1967]; see Deverow , 38 NY3d at 164; US Const Sixth, Fourteenth Amends). Criminal defendants also have a constitutional right to self-representation ( see McKaskle v Wiggins , 465 US 168, 174 [1984]). The right to self-representation exists not only "to affirm the dignity and autonomy of the accused," but also "to allow the presentation of what may, at least occasionally, be the accused's best possible defense" ( id. at 176-177; see People v Rosen , 81 NY2d 237, 245 [1993]). To that end, pro se defendants "must be allowed to control the organization and content of [their] own defense" and "must be accorded 'compulsory process for obtaining witnesses in [their] favor' " ( McKaskle , 465 US at 174, quoting US Const Sixth Amend; see Rosen , 81 NY2d at 244). Thus, an incarcerated pro se defendant has a right to prepare and present a defense no less than any other defendant. {**42 NY3d at 617} In contending that the right to present a defense was violated in this case, defendant posits that the People's "unfettered access" to recordings of jail phone calls has the potential to prejudice a pro se defendant and impair his ability to prepare and present a defense, undermining the fairness of the process ( People v Johnson , 27 NY3d 199 , 211 [2016, Pigott, J., concurring]). The opportunity for a lawyer to communicate confidentially with potential witnesses is essential to preparation of a defense, and the same is true for an incarcerated defendant exercising the right to self-representation. Pro se defendants who use jail telephones to prepare their witnesses and discuss trial strategies may not fully appreciate that their conversations may be divulged to the prosecution, which risks placing them at an unfair disadvantage. Even where that possibility is understood, the limited alternative options place many incarcerated pro se defendants in a difficult position: prepare over a recorded phone line or do not prepare at all ( see id. at 211 [Pigott, J., concurring]). [1] Under the particular facts of this case, however, we conclude that defendant's right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant's daughter visited him in [*4] jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant's rights, [FN2] permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend {**42 NY3d at 618} to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense. Although the People's monitoring of an incarcerated pro se defendant's jail phone calls may have a chilling effect on the defendant's trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. Under the circumstances of this case, we conclude that there was no violation of defendant's right to present a defense. III. Defendant's remaining contentions are meritless, waived, or unpreserved. Contrary to defendant's contention, the court properly denied his motion to sever the counts in the first indictment charging child pornography offenses from the counts charging sexual assault offenses. Because the offenses were properly joined pursuant to CPL 200.20 (2) (b), "the court lacked statutory authority to sever" them ( People v Bongarzone , 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]). [2] We reject defendant's further contention that the court should have denied his request to proceed pro se as equivocal. A request to go pro se is equivocal when it "does not reflect an affirmative desire for self-representation" and instead shows that "self-representation was reserved as a final, conditional resort" ( Matter of Kathleen K. [Steven K.] , 17 NY3d 380 , 387 [2011]). To be sure, "conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal" ( People v LaValle , 3 NY3d 88 , 107 [2004]), but it can become equivocal where a "defendant raised the argument for self-representation as a way of obtaining the dismissal of his . . . assigned counsel" ( People v Gillian , 8 NY3d 85 , 88 [2006]). Here, although defendant {**42 NY3d at 619} initially made his request to proceed pro se as an alternative to his request for substitute counsel, defendant later told the court that he had spoken to his family and decided that self-representation was "the best way to go." Before conducting the requisite searching inquiry, the court invited defendant to make another argument for substitute counsel, but defendant declined to do so, explaining that he was "satisfied to go pro se." Moreover, even after granting defendant's request to proceed pro se, the court left the door open for defendant to make an argument for the appointment of a new attorney, and thereafter defendant "never said a word about wanting" one ( LaValle , 3 NY3d at 107). Under these circumstances, where defendant explicitly declined the opportunity to argue for a new attorney, defendant's request was unequivocal. Defendant next contends that the court failed to conduct a "searching inquiry" as required to apprise him of the dangers and pitfalls of self-representation inasmuch as the court failed to ensure that he was aware of the nature of the charges and range of possible sentences that may result from conviction. We reject that contention as well ( see People v Blue , — NY3d — [2024]). The record and defendant's own statements indicate that he worked as a court officer for 21 years, had been involved in prior sexual abuse cases, and was aware that he risked [*5] serving the rest of his natural life in prison if convicted. Indeed, defendant mentioned twice during the searching inquiry that his "life" was at stake. Defendant waived any challenge to the use of a recorded jail telephone call during cross-examination of his daughter because he agreed to allow the recording to be played and stipulated to its contents ( see People v Santos-Sosa , 233 AD2d 833, 833 [4th Dept 1996], lv denied 89 NY2d 988 [1997]). Defendant's remaining contentions, including his challenge to the People's introduction of an inflammatory bestiality video, are unpreserved. Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order affirmed. Footnotes Footnote 1: According to the trial testimony of the detective and computer crimes specialist who conducted the forensic examination, TrueCrypt is software that allows users to encrypt files and create containers, like folders, where encrypted files can be stored and accessed only by a person who knows the password. Footnote 2: Though unrelated to the monitoring of the calls, we note that another of the court's rulings demonstrates that the court was mindful of defendant's right to present a defense. When defendant sought to introduce a previously undisclosed, years-old, edited recording of a complainant's ostensible recantation, the court permitted the recording to be played for the jury, a ruling consistent with the goal of protecting defendant's right to present a defense ( see People v Cerda , 40 NY3d 369 , 378 [2023] [concluding that exclusion of exculpatory forensic evidence violated right to present defense]; People v Spencer , 20 NY3d 954 , 956 [2012] [concluding that court should have permitted defendant to present evidence in his defense of officer's motive to frame him for the crime]).

[Assistant]
Trial court did not err in denying motion to sever the counts charging child
pornography offenses from the counts charging sexual assault offenses.
"Because the offenses were properly joined pursuant to CPL 200.20 (2)
(b),
'the court lacked statutory authority to sever' them (People v
Bongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]).
"