People v. Dumervil

• Decision Date: 18 May 2022
• Docket Number: 2017–08675,Ind. No. 15/16
• Parties: The PEOPLE, etc., respondent, v. Ricardy DUMERVIL, appellant.
• Court: New York Supreme Court — Appellate Division

205 A.D.3d 923

166 N.Y.S.3d 595 (Mem)

The PEOPLE, etc., respondent,

v.Ricardy DUMERVIL, appellant.

2017–08675

Ind. No. 15/16

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

Argued—March 8, 2022

May 18, 2022

Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael B. Aloise, J.), rendered July 27, 2017, convicting him of sex trafficking (two counts), promoting prostitution in the second degree (two counts), and promoting prostitution in the third degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that he was deprived of his right to a trial by jury because the Supreme Court discharged a juror prior to the taking of testimony is without merit. "A defendant has a constitutional right to a trial by a particular jury chosen according to the law, in whose selection the defendant has had a voice" ( People v. Alleyne, 179 A.D.3d 712, 713, 113 N.Y.S.3d 588 ; see People v. Jeanty, 94 N.Y.2d 507, 516, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ). However, "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, ... the court must discharge such juror" ( CPL 270.35[1] ; see People v. Alleyne, 179 A.D.3d at 713, 113 N.Y.S.3d 588 ). Furthermore, "[i]f such juror fails to appear, or if the court determines that there is no reasonable likelihood such juror will be appearing, in court within two hours of the time set by the court for the trial to resume, the court may presume such juror is unavailable for continued service and may discharge such juror" ( CPL 270.35[2][a] ; see People v. Thompson, 173 A.D.3d 1068, 1070, 103 N.Y.S.3d 520 ).

Here, after the jury had been sworn, the juror in question informed the Supreme Court that she had to attend a medical appointment with her son on a date that would interfere with her jury service. On the date in question, the juror confirmed that she had to leave court at noon to attend the appointment. The court properly inquired into the reason for the juror's unavailability and determined that she was, effectively, unavailable on the date set by the court for continuation of the trial (see CPL 270.35[2][a] ; People v. Jeanty, 94 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ). Furthermore, contrary to the defendant's contention, the " ‘replacement [of a sworn juror] with an alternate juror is not, as a rule, a violation of the right to trial by jury’ as ‘there is no material distinction between the regular and alternate jurors’ " ( People v. Vazquez, 82 A.D.3d 1273, 1275, 920 N.Y.S.2d 212, quoting People v. Ballard, 51 A.D.3d 1034, 1036, 858 N.Y.S.2d 769 ; see People v. Jeanty, 94 N.Y.2d at 518, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ), and thus his contention that the juror's replacement violated his constitutional right to a trial by jury is without merit (see People v. Jeanty, 94 N.Y.2d at 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ; People v. Ballard , 51 A.D.3d at 1035-1036, 858 N.Y.S.2d 769 ).

There is no merit to the defendant's contention that he is entitled to a new trial because the People's one-day delay in disclosing the testifying complainant's history of using medication for bipolar disorder and ADHD constituted a Brady violation (see Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ). The information was provided in time for defense counsel to utilize it to cross-examine that complainant (see People v. Sicilianonunez, 172 A.D.3d 912, 914, 100 N.Y.S.3d 309 ; People v. Gomez, 135 A.D.3d 954, 956, 23 N.Y.S.3d 383 ), and cross-examination did not reveal that the medication had any effect on the complainant's perceptions or ability to recall (see generally People v. McCray, 23 N.Y.3d 193, 199, 989 N.Y.S.2d 649, 12 N.E.3d 1079 ; People v. Rensing, 14 N.Y.2d 210, 212–214, 250 N.Y.S.2d 401, 199 N.E.2d 489 ). Thus, there is no reasonable possibility that earlier disclosure might have led to a different outcome at trial (see People v. Fuentes, 12 N.Y.3d 259, 264, 879 N.Y.S.2d 373, 907 N.E.2d 286 ; People v. McClinton, 180 A.D.3d 712, 713, 119 N.Y.S.3d 132 ). Furthermore, the Supreme Court offered the defendant accommodations to prepare his cross-examination of the testifying complainant upon learning of the information in question, and therefore, the defendant was afforded an opportunity to use the information (see People v. McClinton, 180 A.D.3d at 713, 119 N.Y.S.3d 132 ; People v. Warren, 304 A.D.2d 594, 595, 758 N.Y.S.2d 127 ).

The defendant's contention that certain comments by the prosecutor during summation were improper and made the prosecutor into an unsworn witness is unpreserved for appellate review (see CPL 470.05[2] ). In any event, counsel is to be afforded the widest latitude in making summation arguments and has the right "to comment upon every pertinent matter of fact bearing upon the...