People v. Clark

• Decision Date: 20 December 2016
• Citation: 2016 N.Y. Slip Op. 08485,28 N.Y.3d 556,46 N.Y.S.3d 817,69 N.E.3d 604
• Parties: The PEOPLE of the State of New York, Respondent, v. Prince CLARK, Appellant.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 556
69 N.E.3d 604
46 N.Y.S.3d 817
2016 N.Y. Slip Op. 08485

The PEOPLE of the State of New York, Respondent,
v.
Prince CLARK, Appellant.

Court of Appeals of New York.

Dec. 20, 2016.

46 N.Y.S.3d 818

Lynn W.L. Fahey, Appellate Advocates, New York City (De Nice Powell of counsel), for appellant.

46 N.Y.S.3d 819

Eric Gonzalez, Acting District Attorney, Brooklyn (Sholom J. Twersky and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

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On defendant Prince Clark's appeal challenging his conviction

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of murder in the second degree (Penal Law § 125.25[1] ) and assault in the second degree (Penal Law § 120.05[2] ), only defendant's claim of ineffective assistance of counsel is properly before us. With respect to that challenge, we conclude defendant was not denied a fair trial when his attorney pursued a defense of misidentification in accordance with defendant's assertion of innocence on all charges.

Defendant was convicted upon a jury verdict for the murder of Jamel Wisdom and assault with a deadly weapon of Gamard Talleyrand. According to the trial evidence, defendant was with his friend KM and his cousin and codefendant Michael Morrison, when Wisdom, Talleyrand, and several other men confronted defendant on the street, calling him names, and pushing and kicking him. During the attack KM heard defendant call out that someone had a knife and "they are going to cut me." However, KM did not see a knife and no knife was ever recovered from the scene. After several minutes, defendant, followed by his attackers, headed towards his apartment building, located a short distance away.

The People admitted into evidence surveillance video of defendant's building from the time of the attack as proof of defendant's criminal liability. Talleyrand, despite knowing defendant, testified that he was unable to identify defendant in the video, but KM identified herself, Morrison, and defendant. The People argued, based in part on KM's testimony, that defendant was the man depicted in the video, which captured the shooting of the victim in the lobby of defendant's building. Accordingly, we refer to this man as defendant, acknowledging that defendant maintained at trial that he is not the person in the video.

The surveillance video depicts Morrison and defendant entering the building, walking up the stairs, and then returning to the lobby and exiting together a few minutes later. The two men can then be seen in front of the building where Morrison passes something to defendant, which the People maintained was a gun. Defendant then walked towards the group that had previously attacked him, exiting the camera frame. KM testified that she then heard gunshots, but did not see the shooter since she turned and began running away. Talleyrand testified that he saw Wisdom fall down and turned to see a man, who he claimed he could not identify, with a gun. He ran and was shot twice in the leg.

Video of the lobby shows that after Talleyrand was shot, defendant reentered the building, pursued by two men, one of

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whom was later identified as Wisdom. Once inside the building, Wisdom slammed defendant, who was holding a gun in his hand, up against the lobby wall. Defendant then momentarily freed himself and fired several close range shots at Wisdom. Defendant and Wisdom struggled for several seconds, during which they both fell to the floor. The man who had followed Wisdom into the building attacked defendant, but defendant eventually broke free and the two dispersed, leaving Wisdom motionless on the lobby floor. Police testified that approximately three weeks after the shooting, they apprehended defendant in Georgia.

The medical evidence established that Wisdom died as a result of six gunshot

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69 N.E.3d 607

wounds. He was struck in the head, torso, and arm, and sustained an injury to his spinal cord. The People also admitted physical evidence of defendant's and Morrison's blood, along with Morrison's DNA, on a sweatshirt found on the roof of a nearby building, as well as shell casings recovered from the building lobby and the street where Talleyrand was shot.

Defendant was charged with Wisdom's murder, the attempted murder and assault of Talleyrand, and weapons possession. Codefendant Morrison was charged with assault, weapons possession, and criminal facilitation. Prior to jury selection, and without objection from defendant's counsel, the court ordered the public to wait outside to create space in the courtroom for the prospective jurors. Soon thereafter, but prior to jury selection, Morrison accepted a plea, and defendant proceeded to trial alone (see People v. Morrison, 104 A.D.3d 959, 959, 961 N.Y.S.2d 323 [2013], lv. denied 21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013] ).

During the People's case-in-chief, defense counsel informed the court that he believed the People's evidence supported an extreme emotional disturbance (EED) affirmative defense, and that he had informed defendant that he could not proceed with such defense without defendant's permission, to which defendant stated he "d[id] not wish to have [counsel] indicate in any manner, shape or form as far as justification or diminished capacity on the murder two." Rather, defendant steadfastly maintained he was not the individual depicted in the incriminating video. On the record, the court then addressed defendant concerning his decision not to pursue an EED or justification defense.

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"THE COURT: Have you had an adequate opportunity to discuss these various legal issues and tactical decisions with your attorney?

"THE DEFENDANT: Yes.

"THE COURT: And we've indicated now in open court that at least to the justification or self defense claim or the extreme emotional disturbance, both of which in essence say I did it but there was some reason I did it; either I was justified in doing it or I did it because of an extreme emotional disturbance and, therefore, my—says in essence I'm not guilty of murder, maybe guilty of manslaughter which carries—doesn't carry a life term at the back of it as a murder conviction. Have you had a chance to discuss that?

"THE DEFENDANT: I did.

"THE COURT: And your attorney says that as a tactical decision which you're entitled to make, that you don't want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct?

"THE DEFENDANT: That is correct....

"THE COURT: You doing so voluntarily in full recognition of the potential consequences?

"THE DEFENDANT: I am not making any decision—I'm not making any decision referring to you reducing it to any manslaughter or anything like that cause this is not me."

Counsel proceeded with a misidentification defense, in accordance with defendant's claim of innocence. Further, counsel did not request, and the court did not charge, justification to the jury.

After the case was submitted, on the second day of deliberations, the jury sent a note inquiring: "[h]ow does the law differentiate ‘intent to kill’ from ‘intent to harm’?" and, "with respect to Mr. Wisdom[,] if he initiated the struggle and [defendant] was acting defensively, does that negate ‘intent to kill’?" The Judge informed

69 N.E.3d 608

46 N.Y.S.3d 821

counsel and the prosecutor that he would instruct the jurors that justification and self-defense were not issues before them. Counsel urged the court to limit its instruction to whether defendant's actions were intentional,

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and specifically objected to the court making "any reference to self defense" or "advising the jury that that issue was not before them and they're not to rule on it." The court responded to the note by informing the jurors that they had not been instructed on justification or self-defense, and so they were to focus on whether the People had proved beyond a reasonable doubt that defendant intended to cause Wisdom's death.

The jury subsequently returned a guilty verdict on the second-degree murder, second-degree assault, and weapons possession counts, and acquitted defendant of the attempted murder of Talleyrand.¹ Defendant appealed.

The Appellate Division affirmed in a split decision, concluding, as relevant here, that counsel was not ineffective either for failing to advance a justification defense that would have been inconsistent with defendant's chosen theory of misidentification, or for failing to object to the courtroom closure given the prevailing law at the time (129 A.D.3d 1, 9 N.Y.S.3d 277 [2d Dept.2015] ). The dissent argued that issues of fact existed as to whether defendant acted in...