People v. Avery

• Decision Date: 20 January 2011
• Citation: People v. Avery, 915 N.Y.S.2d 356, 80 A.D.3d 982 (N.Y. App. Div. 2011)
• Parties: The PEOPLE of the State of New York, Respondent, v. Vaughn AVERY, Appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 356

80 A.D.3d 982

The PEOPLE of the State of New York, Respondent,

v.Vaughn AVERY, Appellant.

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

Jan. 20, 2011.

Jonathan S. Fishbein, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, MALONE JR., STEIN and GARRY, JJ.

GARRY, J.

Appeals (1) from a judgment of the Supreme Court (Sheridan, J.), rendered July 30, 1997 in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and attempted robbery in the first degree (two counts), and (2) by permission, from an order of the County Court of Albany County (Herrick, J.), entered December 7, 2009, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.

On an evening in 1996, defendant, Jason Clark and Antonio Spears gathered near a grocery store in the City of Albany. They encountered an acquaintance of Spears who answered somequestions about the store after exiting. After the acquaintance left the area, defendant and Clark, armed with handguns, entered the store. The store owner was stocking shelves and the victim was working at the front counter.

The owner testified that he heard two shots, looked up, and saw two men with covered faces standing near the store entrance, one of whom was holding a gun. He threw jars at the men and they fled. A resident of an upstairs apartment heard the shots, ran downstairs and saw two men fleeing on foot. The victim had been fatally shot by Clark. The next morning police went to the home of Clark and defendant and placed both men in custody. Clark directed police to two handguns concealed in his bedroom.

Defendant was charged with murder in the second degree (felony murder), attempted robbery in the first degree (two counts) and criminal possession of stolen property in the fourth degree. After a jury trial, defendant was convicted of the first three counts and acquitted of the criminal possession charge.¹ He was sentenced to an aggregate prison term of 25 years to life. Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction. The motion was denied after a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the order denying his motion.

Initially, defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved. His motion to dismiss at the close of the People's case identified no specific deficiencies in the proof as to the counts on which he was convicted ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008]; People v. Nesbitt, 69 A.D.3d 1109, 1110-1111, 894 N.Y.S.2d 545 [2010], lv. denied 14 N.Y.3d 843, 901 N.Y.S.2d 149, 927 N.E.2d 570 [2010] ), and he failed to renew the motion after presenting his own evidence ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Garrow, 75 A.D.3d 849, 850, 904 N.Y.S.2d 589 [2010] ). As defendant acknowledges, his claim that Supreme Court improperly instructed the jury on accessorial liability is also unpreserved ( see People v. Moyer, 75 A.D.3d 1004, 1005, 906 N.Y.S.2d 175 [2010] ). The charge, read as a whole, permitted the jury to gather the correct rules to be applied ( see People v. Dickson, 58 A.D.3d 1016, 1018, 872 N.Y.S.2d 216 [2009], lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ). We find no basis to exercise our interest of justice jurisdiction ( see People v. Arce, 70 A.D.3d 1196, 1198, 894 N.Y.S.2d 599 [2010]; People v. Asai, 66 A.D.3d 1138, 1140, 888 N.Y.S.2d 617 [2009] ).

Defendant next raises several arguments related to the trial testimony given by the upstairs apartment resident, whose first language is not English. He contends that he was deprived of his constitutional right to confront witnesses against him when the People offered the testimony of this witness without an interpreter. To the extent that this argument pertains to defendant's direct appeal, it is unpreserved, as defendant did not object to the lack of an interpreter at trial. In any event, we would have found no constitutional violation; while the witness had an imperfect grasp of the language, her answers to defense counsel's questions were responsive ( see People v. Bell, 5 A.D.3d 804, 806-807, 773 N.Y.S.2d 155 [2004], lv. denied 3 N.Y.3d 636, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ).

Defendant next asserts that the People violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] by failing to disclose potential impeachment evidence to the defense, in that this witness allegedly asked the People to provide an interpreter.² As pertinent here, a Brady violation occurs when prejudice arises from suppression by the People of material evidence that could be used to impeach "a crucial prosecution witness" ( People v. Phillips, 55 A.D.3d 1145, 1149, 865 N.Y.S.2d 787 [2008], lv. denied 11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769 [2008]; see People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ). Assuming, arguendo, that the witness made such a request and that this could have been used to impeach her, disclosure would have done nothing more than to demonstrate her limited ability to communicate in English, which was already self-evident. Accordingly, we find no "reasonable probability" that disclosure would have led to a different result at trial ( People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286).

Defendant further argues that a pretrial statement made by this witness to police-and provided to him for the first time at the CPL 440.10 hearing-should have been disclosed before trial and, because it is written in relatively fluent English, would have permitted him to demonstrate that the police had "manufactured" the statement, thereby impeaching the witness at trial. We find no Brady violation. The statement is somewhat more detailed than the trial testimony, but it corresponds accurately to the essentials of that testimony and contradicts none of it. Accordingly, it has little or no impeachment value, and we find no reasonable probability that its disclosure would have affected the result of the trial ( see id.). Although the statementwas Rosario material and should have been disclosed, there is no "reasonable possibility that the non-disclosure materially contributed to the result of the trial" (CPL 240.75; see CPL 240.45 [1][a] ) and, thus, no prejudice exists requiring reversal ( see People v. Felix-Torres, 281 A.D.2d 649, 650-651, 721 N.Y.S.2d 415 [2001], lv. dismissed 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ).

Upon his CPL 440.10 motion, defendant argued that his conviction should be vacated because of newly-discovered evidence in the form of alleged recantations by Clark and the upstairs apartment resident, and because of ineffective assistance of counsel at trial. On the morning after the crime, Clark gave a statement to police indicating that defendant participated in planning the robbery and was with Clark inside the store when Clark shot the victim; he later testified to this effect in greater detail during his plea allocution. At the CPL 440.10 hearing, he contradicted this testimony, claiming that police fabricated his statement and that he testified falsely about defendant's involvement because his lawyer told him that his plea would not be accepted if his testimony was inconsistent with the statement. "There is no form of proof so unreliable as recanting testimony" ( People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733 [1916] ). It was defendant's burden to overcome the presumption of regularity attached to the prior judicial proceedings with substantial evidenceestablishing that Clark's previous statements were false ( see People v. Tucker, 40 A.D.3d 1213, 1214, 834 N.Y.S.2d 590 [2007], lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007] ). Factors to be considered in determining the credibility of recantation testimony include its inherent believability, the demeanor of the recanting witness, the existence of corroborating evidence, reasons offered for the recantation and the previous testimony, the relationship between the recanting witness and the defendant, and "the importance of facts established at trial as reaffirmed in the recantation" ( People v. Wong, 11 A.D.3d 724, 725-726, 784 N.Y.S.2d 158 [2004] ). The recantation was not inherently believable, as it contradicted not only Clark's prior statements and testimony, but those of defendant, who told police that he entered the store with Clark after they made plans to rob it, and of Spears. Further, Clark's purported reason for giving false testimony-the hope of leniency-was inconsistent with the fact that he pleaded guilty with no promised disposition and with the sentence he later received of 25 years to life. Finally, County Court could reasonably have concluded that the real motivation for Clark's changed testimony was the guilt and remorse that he concededly felt because his actions in shooting the victim led to defendant's conviction for felony murder. Thus, we find that County Court properly applied the pertinent factors in determining that Clark's recantation testimony was not credible.

We further agree with County Court that the testimony of the upstairs apartment resident, given at the CPL 440.10 hearing with the assistance of an interpreter, did not constitute a recantation. Although the resident's CPL 440.10 testimony was more detailed than the testimony she gave at trial, there was no inconsistency in the salient details-she heard gunshots, she came downstairs, and she saw two men running away, one of whom wore a red jacket.³ Moreover, even if the additional details included in her CPL 440.10 testimony had been revealed at trial, suggesting that it may have taken her 30 to 40 seconds to reach the...