Here is the decision issued by the court:
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V
MEMORANDUM AND ORDER TODD A. EDWARDS, DEFENDANT-APPELLANT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF
COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Joseph
W. Latham, J.), rendered April 9, 2015. The judgment convicted defendant, upon
a jury verdict, of robbery in the first degree, criminal possession of a weapon
in the third degree and menacing in the third degree. It is hereby ORDERED that
the judgment so appealed from is unanimously modified as a matter of discretion
in the interest of justice and on the law by vacating the sentence imposed and
as modified the judgment is affirmed, and the matter is remitted to Steuben
County Court for the filing of a predicate felony offender statement and
resentencing.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, robbery in the first degree (Penal Law §
160.15 [3]). Contrary to defendant’s contention, the record establishes that
County Court conducted a sufficient inquiry and considered the relevant
factors, including the charged offenses, defendant’s history of multiple felony
convictions, and his prior conduct, before acting within its broad discretion
in determining that requiring defendant to wear a stun belt was necessary for
courtroom security (see People v Brooks, 139 AD3d 1391, 1392, lv denied 28 NY3d
1026; see generally People v Buchanan, 13 NY3d 1, 4). Defendant further
contends that trial counsel was ineffective in failing to request a mid-trial
Wade hearing or preclusion of identification testimony based on the People’s
violation of CPL 710.30 after the clerk of the store that was robbed testified
on cross examination that an investigator had showed her a photograph of defendant
during the course of the criminal investigation. We conclude that defendant’s
contention is based on matters outside the record and therefore must be raised
by way of a motion pursuant to CPL-2- 754 KA 15-00916 article 440 (see
generally People v Alligood, 139 AD3d 1398, 1398). To the extent that we are
able to review defendant’s contention that he was denied effective assistance
of counsel based on the record before us, we conclude that defendant was
provided meaningful representation (see generally People v Baldi, 54 NY2d 137,
147). Defendant’s attorneys were not ineffective for failing to pursue a Wade
hearing with respect to his employer’s identification of him from the
surveillance video of the robbery where, as here, “ ‘no Wade hearing was
required because the identifying witness[ ] knew defendant, and thus the
identification was merely confirmatory’ ” (People v Sebring, 111 AD3d 1346,
1346-1347, lv denied 22 NY3d 1159; see generally People v Walker, 115 AD3d
1357, 1358, lv denied 23 NY3d 1069). To the extent that defendant contends that
his trial counsel was ineffective for failing to challenge certain prospective
jurors and to request particular jury instructions, we conclude that defendant
failed “ ‘to demonstrate the absence of strategic or other legitimate
explanations’ for [those] alleged shortcomings” (People v Benevento, 91 NY2d
708, 712; see People v Slack, 137 AD3d 1568, 1570, lv denied 27 NY3d 1139;
People v Martinez, 59 AD3d 1071, 1072-1073, lv denied 12 NY3d 856). Viewing the
evidence in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that, although an acquittal
would not have been unreasonable, the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). Finally, defendant
contends that the People failed to comply with the procedural requirements of
CPL 400.15 in seeking to have him sentenced as a second violent felony offender
inasmuch as they did not file a predicate felony offender statement as required
by CPL 400.15 (2). Although that contention is not preserved for our review
(see People v Pellegrino, 60 NY2d 636, 637; People v Myers, 52 AD3d 1229, 1230),
we nonetheless exercise our discretion to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]; People v VanGorden, 147
AD3d 1436, 1441). Contrary to the assertion of the prosecutor at sentencing,
“the need for a predicate felony offender statement was not obviated by
defendant’s pretrial admission to a special information setting forth his prior
felony conviction as an element of a count charging criminal possession of a
weapon. The special information did not permit defendant to raise
constitutional challenges to his prior conviction, as he had the right to do
before being sentenced as a second felony offender” (VanGorden, 147 AD3d at 1441;
see People v Brown, 13 AD3d 667, 669, lv denied 4 NY3d 742; see generally CPL
200.60 [3]; 400.15 [7] [b]). We therefore modify the judgment by vacating the
sentence, and we remit the matter to County Court for the filing of a predicate
felony offender statement pursuant to CPL 400.15 and resentencing. In light of
our determination, we do not reach defendant’s challenge to the severity of the
sentence.
Entered: June 16, 2017 Frances E. Cafarell
Clerk of the Court
