People v. Lockett (Richard)

People v Lockett (2021 NY Slip Op 50230(U)) [*1] People v Lockett (Richard) 2021 NY Slip Op 50230(U) [71 Misc 3d 127(A)] Decided on March 18, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 18, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ 2019-1519 OR CR The People of the State of New York, Respondent, against Richard Lockett, Appellant. Richard L. Herzfeld, for appellant. Orange County District Attorney (Andrew R. Kass of counsel), for respondent. Appeal from a judgment of the City Court of Middletown, Orange County (Steven W. Brockett, J.), rendered September 13, 2019. The judgment convicted defendant, upon a jury verdict, of resisting arrest, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged with obstructing governmental administration in the second degree (Penal Law § 195.05) and resisting arrest (Penal Law § 205.30). During jury selection, the People successfully challenged two prospective jurors for cause over defense counsel's objection. The People did not exhaust all of their peremptory challenges before the jury was sworn. At the jury trial, two police officers testified that they were patrolling the area of Circle Park in Middletown when they recognized defendant, who had an outstanding arrest warrant, and pulled up next to him in their marked police vehicle. Defendant was told to stop and that he was under arrest. Defendant looked at the officers and began walking away. After defendant was told a second time to stop, he ran away. One of the officers and a police dog exited the vehicle and chased after defendant. When defendant entered Thrall Park, the police dog caught defendant, but defendant broke free. The dog continued chasing defendant and apprehended him a second time inside Thrall Park. When defendant attempted to climb a fence, an officer pulled him down to the ground. While defendant was on his stomach, the officer directed defendant to put his hands behind his back, but he continued to resist by lying on top of his arms and holding his hands together. Both officers had to physically pull defendant's arms out from under his body to handcuff him. The People's witness testified that there was a video recording of the incident [*2]taken at or near Circle Park, but there were no video cameras inside Thrall Park to record the incident there. Defendant testified that he did not know he was being chased by police and that, after he was pulled down off the fence by the officer, he could not move his hands because he was lying on top of them and the dog was biting him. During a charge conference, defense counsel requested an adverse inference charge with respect to video evidence claiming that there was a video of the incident from the Circle Park area and inside Thrall Park that had not been produced at trial. The People conceded that there was some video footage of the incident taken in Circle Park and agreed that an adverse inference charge should be given with respect to the Circle Park video evidence that was not produced at trial. However, the People argued that the testimony showed that there were no video cameras inside Thrall Park to record the incident there. Before the City Court ruled on defense counsel's request, he withdrew his request for an adverse inference charge and indicated that he would address the video evidence during summation. The jury found defendant guilty of resisting arrest and acquitted him on the charge of obstructing governmental administration in the second degree. On appeal, defendant contends that he was denied the effective assistance of counsel when counsel withdrew his request for an adverse inference charge; that it was error for the trial court to grant the People's challenges for cause of two prospective jurors over defense counsel's objections; that the court should have granted his application for an adverse inference charge with respect to the missing video evidence; and that the verdict convicting him of resisting arrest was repugnant to his acquittal of obstructing governmental administration in the second degree. As defense counsel withdrew his request for an adverse inference charge before the court ruled on it, any contention regarding the merits of the request was waived and unpreserved for appellate review (see CPL 470.05 [2]; People v Holmes, 211 AD2d 824 [1995]). Even assuming that defense counsel should not have withdrawn his request for an adverse inference charge, this decision, standing alone, was not so egregious and prejudicial as to compromise defendant's right to a fair trial, and the record on the whole reveals that defense counsel provided meaningful representation (see generally People v Wheeler, 124 AD3d 1136, 1139-1140 [2015]). Among other things, defense counsel gave cogent opening and closing statements, lodged successful objections, conducted pointed direct and cross-examinations pursuing a trial strategy challenging the credibility of the police witnesses, made appropriate trial motions and advanced a reasonable defense (see People v Every, 146 AD3d 1157, 1166 [2017], affd 29 NY3d 1103 [2017]; see also People v Sostre, 172 AD3d 1623, 1627 [2019]). Additionally, counsel obtained an acquittal on the charge of obstructing governmental administration in the second degree. In view of the forgoing, we find that defendant's attorney provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Caban, 5 NY3d 143 [2005]; People v Johnson, 71 AD3d 1048 [2010]) and, consequently, defendant also failed to meet the threshold for ineffectiveness under the federal standard (see US Const, 6th Amend; Strickland v Washington, 466 US 668, 687 [1984]). Defendant's next contention, that the court should not have granted the People's challenges to two prospective jurors for cause, is not reviewable on appeal, as the People did not exhaust their peremptory challenges before jury selection was complete (see CPL 270.20 [2]; People v Singleton, 186 AD3d 1412 [2020]). Finally, defendant's contention that the verdict [*3]convicting him of resisting arrest was repugnant to the verdict acquitting him of obstructing governmental administration in the second degree is unpreserved for appellate review, as defendant did not raise such an objection before the court discharged the jury (see CPL 470.05 [2]; People v Alfaro, 66 NY2d 985, 987 [1985]; People v Satloff, 56 NY2d 745 [1982]; People v Jackson, 19 AD3d 614, 615 [2005]), and we decline to reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]). Accordingly, the judgment of conviction is affirmed. RUDERMAN, P.J., GARGUILO and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: March 18, 2021