People v. Anderson

• Decision Date: 23 March 2018
• Docket Number: 1250,KA 14–00474
• Citation: 72 N.Y.S.3d 741,159 A.D.3d 1592
• Parties: The PEOPLE of the State of New York, Respondent, v. Tajh ANDERSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1592
72 N.Y.S.3d 741

The PEOPLE of the State of New York, Respondent,
v.
Tajh ANDERSON, Defendant–Appellant.

1250
KA 14–00474

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 23, 2018

WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

Memorandum:

159 A.D.3d 1593

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ), defendant contends that he was denied a fair trial by the admission of prejudicial propensity evidence, and that his waiver of the right to be present at trial was invalid because County Court did not investigate whether he was receiving a proper dosage of psychiatric medication. We affirm the judgment of conviction.

In 2005, the 15–year–old victim was shot to death near the Campbell Street Recreation Center in Rochester with a 9 millimeter semiautomatic weapon. On the evening of the murder, the police questioned but did not charge defendant, who was then 14 years old. The case went cold until 2011, when defendant made admissions about the murder to another inmate (informant) while he was incarcerated on unrelated charges. Defendant's admissions to the crime were contained in a handwritten letter, which defendant showed to the informant before mailing it to the mother of his child. After the informant reported defendant's admissions to the authorities, investigators outfitted him with a wire to record future conversations with defendant. Defendant made further admissions in audio-recorded conversations with the informant.

Defendant was indicted for the 2005 murder and, at trial, the People sought to admit the letter in evidence. Defense counsel requested the redaction of certain information, and the court granted counsel's request in part. After the letter was redacted to omit references to unrelated charges that were pending against defendant at the time he wrote it, the court received it in evidence. The letter was read aloud to the jury by the mother of defendant's child, who testified that she received it and recognized the handwriting as defendant's. In the letter, defendant wrote, inter alia, that he "first shot somebody" on Campbell Street when he was 14 years old, that wiser persons were "always" telling him to calm down or he would "end up killin' somebody," that he "let a lot of people live," and that he was hopeful that he would not get killed or "kill somebody" in prison. The letter further read, "It's like sometimes I turn into the Devil in true form," and "I am a wolf, tiger, bear, bull, lion, shark, ... I'm a[ ] beast. I never had fear pump in my soul or heart."

The court also admitted in evidence audio recordings of defendant's conversations with the informant. In one recording, defendant admitted to the crime charged and also claimed to

159 A.D.3d 1594

be responsible for an unrelated shooting with a "deuce-deuce rifle," which he described as his "favorite shot." Defendant spoke knowledgeably about different makes and models of guns, none of which had been used to commit the crime charged, and the two men discussed the best ways to shoot different guns. Defendant also spoke of various crimes that had been committed by members of his family, and told the informant that guns had been available to him since he was 14 years old. Defendant said that he had no regard for feelings, and he and the informant mimicked the sounds of gunfire.

As a preliminary matter, defendant correctly concedes that he did not object to the admission of the alleged propensity evidence at issue on appeal and thus failed to preserve for our review his contention that the court erred in admitting that evidence (see CPL 470.05[2] ; People v. Chase, 277 A.D.2d 1045, 1045, 716 N.Y.S.2d 486 [4th Dept. 2000], lv denied 96 N.Y.2d 733, 722 N.Y.S.2d 799, 745 N.E.2d 1022 [2001] ). We decline to exercise our power to review that contention as a matter of our discretion in the interest of justice (see CPL 470.15[6][a] ).

We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that "a reviewing court must avoid confusing ‘true ineffectiveness with mere losing tactics' " ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). It "is not for [the] court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" ( People v. Satterfield, 66 N.Y.2d 796, 799–800, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel's summation, was that defendant did not kill the victim; he was merely "talking tough" because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just "trying to sound bigger than he really was." Defense counsel urged the jury to find defendant's statements unworthy of belief because defendant was frightened and "puffing." In an effort to deflect the jury's attention from defendant's admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant's

159 A.D.3d 1595

confession to the Campbell Street homicide. In other words, extracting defendant's admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury's attention on defendant's admissions of guilt.

We are mindful that counsel was tasked with providing a cogent defense notwithstanding defendant's repeated and recorded admissions of guilt, which would ultimately be presented to the jury regardless of whether the other material was redacted. As a result, counsel was in the unenviable position of having to convince the jury that defendant's admissions were unworthy of belief. To that end, it was favorable to the defense for the jurors to observe for themselves the extent to which defendant was a tough-talker. Otherwise, the defense theory that defendant was "puffing" and "trying to sound bigger than he really was" would have had no corroboration in the trial record. Moreover, counsel presented a clear and effective opening statement, a blistering cross-examination of the informant, and a powerful summation on defendant's behalf. We conclude that he provided defendant with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), and that defendant was afforded a fair trial.

Finally, we reject defendant's contention that his waiver of the right to be present at trial was not knowingly, intelligently, and voluntarily made. There were no concerns raised about defendant's mental health as the trial date approached, or in the first several days of the trial. The court had the opportunity to observe defendant's behavior as the trial proceeded, and the court observed that he was actively assisting his attorney and behaving "like a gentleman." Notably, defendant's request to absent himself from the trial came after he attentively sat through jury selection, opening statements, and the testimony of 10 prosecution witnesses. It was only after defendant's childhood friend offered damaging testimony against defendant that he indicated that he no longer wished to be present in the courtroom. At that time, the court conducted a careful inquiry and defendant responded in a lucid and unambiguous manner. Defendant convincingly established that he understood the consequences of his decision. Thus, we conclude that defendant knowingly, intelligently, and voluntarily waived his right to be present at trial (see People v. Parker, 57 N.Y.2d 136, 140–141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ).

It is hereby ORDERED that the judgment so appealed from is affirmed.

All concur except Lindley and Troutman, JJ., who dissent and vote to reverse in accordance with the following memorandum:

159 A.D.3d 1596

We respectfully dissent. We agree with the majority concerning the waiver of the right to be present. In our view, however, defendant was denied a fair trial by the admission of egregious and prejudicial propensity evidence, and was also denied effective assistance of counsel by his...