People v. Drumgoole

• Decision Date: 30 December 1996
• Citation: 234 A.D.2d 888,652 N.Y.S.2d 443
• Parties: PEOPLE of the State of New York, Respondent, v. Ishmiel DRUMGOOLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 443

652 N.Y.S.2d 443

234 A.D.2d 888

PEOPLE of the State of New York, Respondent, v. Ishmiel DRUMGOOLE, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 30, 1996.

James Hinman, Rochester, for Appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

Before DENMAN, P.J., and LAWTON, FALLON, DOERR and BALIO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of assault in the first degree and criminal possession of a weapon in the third degree arising out of an incident in which defendant beat and stomped on his girlfriend and threatened her with a knife. Defendant was sentenced to consecutive indeterminate terms of imprisonment of 5 to 15 years on the assault count and 2 1/3 to 7 years on the weapon possession count.

In the main brief, defendant contends that County Court erred in discharging prospective jurors over defendant's objection; that the prosecution failed to disclose Brady material, i.e., prior convictions or acts of violence by the victim; that the court erred in imposing consecutive sentences; and that the court erred in summarily denying defendant's motion to set aside the verdict pursuant to CPL 330.30. In a pro se supplemental brief, defendant raises additional claims of alleged erroneous rulings, prosecutorial misconduct, and ineffective assistance of counsel.

Jury selection began with some preliminary remarks by the court concerning the nature of the case, the estimated length of the trial, the possibility of overnight sequestration, and other considerations. Following those remarks, the court asked the prospective jurors whether there were any who felt that they could not serve. Over defendant's objection, the court excused 23 potential jurors who expressed that they were unable to serve.

Defendant has a right "to a particular jury chosen according to law, in whose selection he has had a voice" (People v. Ivery, 96 A.D.2d 712, 465 N.Y.S.2d 371). However, that right is subject to the broad discretion of the trial court to examine and excuse prospective jurors before voir dire (see, People v. Vargas, 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879; People v. Velasco, 77 N.Y.2d 469, 472-473, 568 N.Y.S.2d 721, 570 N.E.2d 1070; People v. Wilson, 106 A.D.2d 146, 149, 484 N.Y.S.2d 733), and to "prevent this most time-consuming phase of a jury trial from becoming unduly protracted" (People v. Pepper, 59 N.Y.2d 353, 358, 465 N.Y.S.2d 850, 452 N.E.2d 1178). We conclude that the court did not abuse its discretion in excusing those potential jurors who stated that they were unable to serve.

The prosecution did not fail to disclose relevant exculpatory information in its possession (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). The prior convictions or violent acts of the victim, who was unable to testify, were not material to the issue of defendant's guilt or innocence absent defendant's knowledge of those acts (see, Matter of Robert S., 52 N.Y.2d 1046, 1048, 438 N.Y.S.2d 509, 420 N.E.2d 390; People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841). The court did not err in imposing consecutive sentences on the assault and weapon possession counts. We reject defendant's contention that the offenses were "committed through a single act or omission" (Penal Law § 70.25[2] ). The assault and the possession of the knife were separate and distinct acts punishable by consecutive sentences (see, People v. Frazier, 212 A.D.2d 976, 977, 623 N.Y.S.2d 459; People v. Manning, 199 A.D.2d 621, 622-623, 604 N.Y.S.2d 993, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 387, 634 N.E.2d 988; People v. Robbins, 118 A.D.2d 820, 500 N.Y.S.2d 177, lv. denied 67 N.Y.2d 949, 502 N.Y.S.2d 1043, 494 N.E.2d 128).

The court properly denied defendant's motion to set aside the verdict. To the extent that defendant's motion sought reversal on a "ground appearing in the record" (CPL 330.30[1] ), the court properly denied the motion on the ground that the moving papers are legally insufficient (see, CPL 330.40[2][e][i] ). To the extent that the motion refers to matters outside the record, defendant is relegated to postconviction remedies (see, CPL 330.30[1]; People v. Grossfeld, 216 A.D.2d 319, 320-321, 628 N.Y.S.2d 331, lv. denied 86 N.Y.2d 735, 631 N.Y.S.2d 616, 655 N.E.2d 713; People v. Leka, 209 A.D.2d 723, 724, 619 N.Y.S.2d 144, lv. denied 85 N.Y.2d 911, 627 N.Y.S.2d 334, 650 N.E.2d 1336).

The court did not abuse its discretion in denying the request for appointment of a psychiatric expert to aid the defense (see, People v. Mooney, 76 N.Y.2d 827, 828, 560 N.Y.S.2d 115, 559 N.E.2d 1274; People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351; People v. Wilson, 136 A.D.2d 800, 523 N.Y.S.2d 629, lv. denied 71 N.Y.2d 974, 529 N.Y.S.2d 85, 524 N.E.2d 439; People v. Donohue, 123 A.D.2d 77, 79-80, 510 N.Y.S.2d 722, lv. denied 69 N.Y.2d 879, 515 N.Y.S.2d 1027, 507 N.E.2d 1097, 69 N.Y.2d 949, 516 N.Y.S.2d 1031, 509 N.E.2d 366). Defendant failed to meet his burden of demonstrating the necessity and relevance of such evidence (see, County Law § 722-c; People v. Schneider, 188 A.D.2d 754, 756-757, 591 N.Y.S.2d 550, lv. denied 81 N.Y.2d 892, 597 N.Y.S.2d 954, 613 N.E.2d 986; People v. Gallow, 171 A.D.2d 1061, 1062-1063, 569 N.Y.S.2d 530, lv. denied 77 N.Y.2d 995, 571 N.Y.S.2d 920, 575 N.E.2d 406; People...