SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1242 

KA 13-00408 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ALLEN J. BURNS, DEFENDANT-APPELLANT. 

 

ADAM H. VAN BUSKIRK, MORAVIA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Mark H.

Fandrich, A.J.), rendered October 30, 2012. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a weapon in

the third degree (three counts), assault in the second degree (four

counts), criminal obstruction of breathing or blood circulation (four

counts), criminal mischief in the fourth degree (three counts), and 

harassment in the second degree (three 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, three counts of criminal

possession of a weapon in the third degree (Penal Law § 265.02 [1])

and four counts of assault in the second degree (§ 120.05 [2]). 

Defendant contends that he was denied a fair trial by prosecutorial

misconduct on summation. We note that defendant failed to object to

many of the alleged instances of misconduct, and thus his challenges

to those remarks are unpreserved for our review (see CPL 470.05 [2];

People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). We decline

to exercise our power to review those alleged instances of misconduct

as a matter of discretion in the interest of justice (see CPL 470.15

[6] [a]). With respect to the alleged instances of misconduct that

are preserved for our review, we conclude that any improper remarks

were “ ‘not so pervasive or egregious as to deprive defendant of a

fair trial’ ” (People v Johnson, 303 AD2d 967, 968, lv denied 100 NY2d

583). 

Defendant next contends that County Court erred in refusing to

admit testimony regarding the victim’s psychiatric history. We reject

that contention. Two of the questions posed by defense counsel would

have elicited inadmissible hearsay (see People v Romero, 78 NY2d 355,

361), and the third question was an improper attempt to impeach the
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KA 13-00408 

victim’s credibility by seeking contradictory testimony from another

witness on a collateral matter (see People v Pavao, 59 NY2d 282, 288-

289).

Defendant contends that the evidence is legally insufficient with

respect to two counts each of criminal possession of a weapon in the

third degree and assault in the second degree because the People

failed to establish that the alleged weapons constituted “dangerous

instruments.” A dangerous instrument is “any instrument, article or

substance . . . which, under the circumstances in which it is used,

attempted to be used or threatened to be used, is readily capable of

causing death or other serious physical injury” (Penal Law § 10.00

[13]). Serious physical injury is defined as “physical injury which

creates a substantial risk of death, or which causes death or serious

and protracted disfigurement, protracted impairment of health or

protracted loss or impairment of the function of any bodily organ” (§

10.00 [10]). Here, the evidence is legally sufficient to establish

that the door was a dangerous instrument when defendant rammed it into

the victim’s leg (see People v Coleman, 82 AD3d 1593, 1594, lv denied

17 NY3d 793; see also People v Smith, 27 AD3d 894, 895-897, lv denied

6 NY3d 898). The evidence is also legally sufficient to establish

that the knife was a dangerous instrument when defendant struck the

victim’s head with the handle of the knife (see People v Wooden, 275

AD2d 935, 935, lv denied 96 NY2d 740). 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 reject defendant’s further contention

that the verdict is against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495).

Defendant failed to preserve for our review his contention that

the first two counts of the indictment were defective because they

were unreasonably vague (see People v Erle, 83 AD3d 1442, 1443, lv

denied 17 NY3d 794), and we decline to exercise our power to review

that contention as a matter of discretion in the interest of justice

(see CPL 470.15 [6] [a]). Contrary to defendant’s contention, he was

not denied effective assistance of counsel by defense counsel’s

failure to request a Huntley hearing. 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)

and, here, defendant failed to show that a Huntley hearing would have

resulted in the suppression of defendant’s videotaped confession (see

People v Snyder, 100 AD3d 1367, 1369-1370, lv denied 21 NY3d 1010).

Inasmuch as defendant failed to show good cause for substituting

his second assigned attorney with a new attorney (see People v

Linares, 2 NY3d 507, 510), the court did not err in denying

defendant’s application seeking new counsel. The court also properly

denied defendant’s request to proceed pro se because defendant’s

request was equivocal (see generally People v Gillian, 8 NY3d 85, 88;

People v Alexander, 109 AD3d 1083, 1084). “By failing to move to

dismiss the indictment within the five-day statutory period on the

ground that he was denied his right to testify before the grand jury .
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KA 13-00408 

. . , defendant thus waived his right to testify before the grand jury

and his contention that the indictment should have been dismissed

based on the denial of his right to testify before the grand jury

lacks merit” (People v Armstrong, 94 AD3d 1552, 1552-1553, lv denied

19 NY3d 957; see People v Hardy, 49 AD3d 1232, 1232-1233, affd 13 NY3d

805; People v Kyle, 56 AD3d 1203, 1203, lv denied 12 NY3d 785).

The sentence is not unduly harsh or severe. We have considered

defendant’s remaining contentions and conclude that they are without

merit.

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court