People v. Burns

• Decision Date: 25 November 2020
• Docket Number: 108856
• Citation: 188 A.D.3d 1438,136 N.Y.S.3d 532
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas BURNS, Also Known as True, Thomas Truelane and Thomas Chavis, Appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1438
136 N.Y.S.3d 532

The PEOPLE of the State of New York, Respondent,
v.
Thomas BURNS, Also Known as True, Thomas Truelane and Thomas Chavis, Appellant.

108856

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

Calendar Date: October 16, 2020
Decided and Entered: November 25, 2020

136 N.Y.S.3d 535

Noreen McCarthy, Keene Valley, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Lynch, J.P., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

136 N.Y.S.3d 536

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered May 2, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in the second degree (two counts), assault in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the first degree and criminal possession of a weapon in the third degree.

Defendant was charged by indictment with attempted murder in the second degree, assault in the first degree, two counts of criminal possession of a weapon in the second degree, reckless endangerment in the first degree, assault in the second degree, aggravated cruelty to animals and criminal possession of a weapon in the third degree. Prior to trial, the count charging aggravated cruelty to animals was dismissed. The remaining charges stemmed from two different altercations involving two different victims. First, in December 2013, defendant struck victim A in the face causing him to break his jaw. Subsequently, in April 2014, defendant was identified as the perpetrator in the shooting of victim B, which resulted in victim B becoming paralyzed. Following a jury trial, defendant was acquitted of the top count of attempted murder in the second degree and convicted, instead, of the lesser included offense of assault in the second degree. Defendant was otherwise convicted as charged and sentenced to consecutive prison terms of 20 years and seven years for his convictions of assault in the first degree and one count of assault in the second degree, respectively, and to lesser concurrent prison terms on the remaining convictions, with periods of postrelease supervision. Defendant appeals.

Defendant's primary contentions on appeal are that he was deprived of a fair trial due to ineffective assistance of counsel and prosecutorial misconduct. Turning first to his ineffective assistance of counsel claim, to establish such a claim, "a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Porter, 184 A.D.3d 1014, 1018, 125 N.Y.S.3d 776 [2020] [internal quotation marks and citations omitted, lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 383, 152 N.E.3d 1185 [2020] ]; accord People v. Santana, 179 A.D.3d 1299, 1302, 117 N.Y.S.3d 729 [2020], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ). "This standard is not amenable to precise demarcation and necessarily hinges upon the facts and circumstances of each particular case. A reviewing court must avoid confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. In short, the Constitution guarantees a defendant a fair trial, not a perfect one" ( People v. Sostre, 172 A.D.3d 1623, 1627, 100 N.Y.S.3d 768 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ; see People v. De Marco, 33 A.D.3d 1045, 1046, 822 N.Y.S.2d 325 [2006] ).

Defendant specifically contends that counsel was ineffective for failing to move to sever count 6 of the indictment, which charged assault in the second degree relating to victim A, because there was no statutory basis to join this charge with the other counts of the indictment, all of which related to the shooting of victim B. However, these offenses were properly

136 N.Y.S.3d 537

joined as they "[are] defined by the same or similar statutory provisions" ( CPL 200.20[2][c] ; see People v. Cox, 129 A.D.3d 1210, 1214, 10 N.Y.S.3d 727 [2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; People v. Ai Jiang, 62 A.D.3d 515, 515, 880 N.Y.S.2d 12 [2009], lv denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010] ), and defendant has failed to establish that a motion for severance would have been granted or that he suffered any prejudice from the lack of severance (see People v. Cox, 129 A.D.3d at 1214, 10 N.Y.S.3d 727 ). To that end, defendant does not allege "that he had a strong need to refrain from testifying concerning the charges arising from one incident, and important testimony to present concerning the second incident" ( People v. Hall, 169 A.D.2d 778, 779, 565 N.Y.S.2d 144 [1991] ; see People v. Burnett, 228 A.D.2d 788, 790, 644 N.Y.S.2d 79 [1996] ). Additionally, "[t]he proof of each crime was separately presented, uncomplicated, and easily segregable in the jury's mind" ( People v. Hall, 169 A.D.2d at 779, 565 N.Y.S.2d 144 ), both victims identified defendant as the perpetrator (see People v. McNeil, 165 A.D.2d 882, 883, 560 N.Y.S.2d 355 [1990], lv denied 76 N.Y.2d 988, 563 N.Y.S.2d 777, 565 N.E.2d 526 [1990] ) and, despite defendant's contention to the contrary, both incidents were supported by a substantial "quantum of proof" at trial ( People v. Burnett, 228 A.D.2d at 790, 644 N.Y.S.2d 79 ). Moreover, even if such motion could have been successful, we cannot conclude on this record that there was no strategic basis for counsel's decision not to make said motion, especially given that defendant had the benefit of two separate attorneys, both of whom had the opportunity to make pretrial motions and did not move for severance (see People v. McGee, 20 N.Y.3d 513, 520, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; People v. Weather, 182 A.D.3d 1043, 1044, 120 N.Y.S.3d 906 [2020] ).

Defendant's allegation that his counsel was ineffective for failing to request lesser included offense charges for count 1 (attempted murder in the second degree) and count 2 (assault in the first degree) is belied by the record as these charges were requested. Nor are we persuaded that counsel's decision to obtain an expert witness, whom Supreme Court ultimately deemed unqualified to testify on a specific issue, was anything other than a trial tactic that proved to be unsuccessful and does not, in and of itself, constitute ineffective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Coles, 27 A.D.3d 830, 832, 810 N.Y.S.2d 262 [2006], lv denied 7 N.Y.3d 757, 819 N.Y.S.2d 883, 853 N.E.2d 254 [2006] ). Further, despite counsel's failure to meet with defendant on one occasion prior to sentencing, it is exceedingly clear from the record that counsel went to great lengths to attempt to effectively communicate with defendant. The record reflects that trial counsel, among other things, made pretrial motions, engaged in voir dire during jury selection, presented cogent opening and closing arguments and engaged in thorough cross-examination of each witness, thereby providing defendant with meaningful representation (see People v. Bombard, 187 A.D.3d 1417, ––––, 133 N.Y.S.3d 669, 2020 N.Y. Slip Op. 06174, *3 [2020] ; People v. Santana, 179 A.D.3d 1299, 1302, 117 N.Y.S.3d 729 [2020], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ).

We turn now to defendant's contention that prosecutorial misconduct deprived him of a fair trial. We disagree. As an initial matter, defendant's assertions of misconduct with respect to the prosecutor's questions about defendant's religious

136 N.Y.S.3d 538

beliefs and an implication by the prosecutor that defendant is a bad parent are unpreserved for review as defendant "failed to render contemporaneous objections to the subject [questions and] statements when they were made" ( People v. Rudge, 185 A.D.3d 1214, 1217, 126 N.Y.S.3d 247 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020] ; see People v....