People v. Cooper

• Decision Date: 31 December 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry COOPER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1583

22 N.Y.S.3d 751

The PEOPLE of the State of New York, Respondent,

v.Terry COOPER, Defendant–Appellant.

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

Dec. 31, 2015.

Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ) and assault in the second degree (§ 120.05[2] ). According to the trial testimony of the victim's sister, who was in the passenger seat of the victim's vehicle when the victim was engaged in the sale of marihuana to the codefendant, the codefendant held a gun to the victim's head. The victim's sister, who was screaming, then saw defendant at the passenger side of the vehicle. She testified that, when she exited the vehicle, which was parked under a street light, she saw that defendant was holding a knife, and she and defendant looked directly at each other while inches apart before she ran down the street. The victim's sister saw defendant stab the victim numerous times. Defendant was arrested when the victim's sister notified the prosecutor at the codefendant's preliminary hearing that the man who stabbed her brother was in the hall.

A police witness testified at trial that the victim's sister was unable to provide any identifying information when interviewed after the crimes occurred. The victim's sister admitted that she and the victim lied to the police regarding the location of the crime, and she stated that she did not tell police that the victim was selling marihuana when the crime occurred because she is the mother of four children and did not want to be connected to a drug sale. She explained that her brother had picked her up from work where she had worked a 16–hour double shift and that he received a call on his cell phone while he was taking her home. Instead of taking her home, however, he proceeded to meet the caller to sell marihuana.

The victim refused to testify at trial, and Supreme Court held the victim in criminal contempt of court based upon that refusal, and sentenced him to 30 days' incarceration (see Judiciary Law § 750[A][3] ; People v. Sweat, 24 N.Y.3d 348, 353–354, 998 N.Y.S.2d 688, 23 N.E.3d 955 ). Contrary to defendant's contention, the court did not abuse its discretion in refusing to give a missing witness charge with respect to the victim. Although the victim was in the courtroom, he was "still ... unavailable within the meaning of the [missing witness] rule" based upon his refusal to testify (People v. Savinon, 100 N.Y.2d 192, 198, 761 N.Y.S.2d 144, 791 N.E.2d 401 ).

Contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict, which is based primarily upon the testimony of a single eyewitness, is not against the weight of the evidence. Because we conclude that a different verdict would not have been unreasonable, we have reviewed the record and independently assessed the evidence (see People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the victim's sister testified that she gave the police information regarding a physical description, the police witness testified that she was unable to do so. Nevertheless, the victim's sister "never wavered in her testimony" regarding the events or her identification of defendant (People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 ). When she saw defendant in the hall outside of the courtroom where she had attended the codefendant's preliminary hearing, she promptly alerted the prosecutor. The victim's sister testified that, when she exited the vehicle, she was inches from defendant in well-lit conditions, albeit briefly and during a very stressful situation; she testified that she and defendant looked directly at each other and she noted his eyes and that she was taller than defendant. The police witness testified that defendant is 5 feet 5 inches tall and the victim's sister testified that she is 5 feet 9 inches tall. The victim's sister testified on cross-examination that she would never forget the faces of the men who injured her brother because she thought she and her brother would be killed that night. Giving "[g]reat deference ... to the [jury's] opportunity to view the witness[ ], hear the testimony and observe [her] demeanor" (Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), we perceive no basis to substitute our credibility determination for that of the jury and conclude that the "jury was justified in finding that guilt was proven beyond a reasonable doubt" (Delamota, 18 N.Y.3d at 117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ).

We reject defendant's further contention that he was denied a fair trial based on the People's failure to provide the report from testing DNA evidence in a timely manner (see CPL 240.20[1][c] ). The court advised the jury of the contents of the report, which excluded defendant and the codefendant as donors of the DNA and determined that all DNA collected came from a single male donor. Furthermore, the reports were admitted in evidence at defendant's request. Where, as here, the People's violation of their obligation did not substantially prejudice defendant, reversal is not required (see People v. Watson, 213 A.D.2d 996, 997, 624 N.Y.S.2d 710, lv. denied 86 N.Y.2d 804, 632 N.Y.S.2d 518, 656 N.E.2d 617 ).

Defendant failed to preserve for our review his contention that he was denied his statutory right to a speedy trial inasmuch as he failed to make a motion to dismiss the indictment on the ground that the People were not ready to proceed to trial within six months (see CPL 30.30[1] [a] ). In any event, the record is...