People v. Goldston

• Decision Date: 19 March 2015
• Docket Number: 104719
• Citation: 126 A.D.3d 1175,2015 N.Y. Slip Op. 02146,5 N.Y.S.3d 600
• Parties: The PEOPLE of the State of New York, Respondent, v. Tasheem GOLDSTON, Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1175

5 N.Y.S.3d 600

2015 N.Y. Slip Op. 02146

The PEOPLE of the State of New York, Respondent

v.Tasheem GOLDSTON, Appellant.

104719

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

March 19, 2015.

Bruce Evans Knoll, Albany, for appellant.

P. David Soars, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., ROSE, EGAN JR. and CLARK, JJ.

Opinion

EGAN JR., J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered July 26, 2011 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Defendant was charged in a 10–count indictment with various crimes stemming from two separate incidents—a shooting that occurred in June 2010 and the subsequent recovery of a weapon from defendant following his arrest in July 2010. Supreme Court initially denied defendant's motion to sever the counts in the indictment but, following a mistrial, defendant's motion in this regard was granted. The July 2010 weapons charges—consisting of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (counts 9 and 10 of the indictment)—proceeded to trial first, and defendant was found guilty as charged. Sentencing was deferred pending trial on the balance of the indictment. After defendant was acquitted of the remaining charges, he was sentenced as a second violent felony offender to 10 ½ years in prison followed by five years of postrelease supervision upon his conviction of criminal possession of a weapon in the second degree and to a lesser, concurrent prison term as to the remaining charge. Defendant now appeals.

Defendant initially contends that the integrity of the grand jury proceeding was impaired because the People collectively presented evidence from the two separate incidents, impermissibly referred to defendant's parolee status, allowed the victim to testify in an inconsistent manner and failed to present exculpatory evidence. As part of his pretrial omnibus motion, defendant indeed sought to dismiss or reduce the indictment pursuant to CPL article 210; however, aside from a passing reference to the People's failure to present exculpatory evidence, none of the arguments now advanced by defendant were included in the subject motion (see CPL 210.20[3] ). Hence, defendant's present challenges to the integrity of the grand jury proceeding are largely unpreserved for our review (seeCPL 470.05[2] ; People v. Whitehead, 119 A.D.3d 1080, 1081, 990 N.Y.S.2d 301 [2014], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ), and we discern no basis upon which to take corrective action in the interest of justice (see People v. Green, 105 A.D.3d 611, 612, 963 N.Y.S.2d 257 [2013], lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ).

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination.... [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” (People v. Lancaster, 69 N.Y.2d 20, 25–26, 511 N.Y.S.2d 559, 503 N.E.2d 990 [1986], cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697 [1987] [citations omitted]; see People v. Thompson, 22 N.Y.3d 687, 697–698, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014] ). Here, the exculpatory evidence cited by defendant “bore principally upon the victim's credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” (People v. Ramjit, 203 A.D.2d 488, 490, 612 N.Y.S.2d 600 [1994], lv. denied 84 N.Y.2d 831, 617 N.Y.S.2d 151, 641 N.E.2d 172 [1994] ). Accordingly, Supreme Court did not err in denying defendant's motion in this regard.

To the extent that defendant's claim that he was denied due process because he was shackled during the course of the suppression hearing has been preserved for our review, we find it to be lacking in merit. In Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the United States Supreme Court held that the U.S. Constitution “forbid[s][the] routine use of visible shackles during the guilt phase” of the trial and “permits a [s]tate to shackle a criminal defendant only in the presence of a special need” (id. at 626, 125 S.Ct. 2007 ). Consistent with that principle, the Court of Appeals has determined that, “as a matter of both federal and state constitutional law, ‘[a] defendant has the right to be free of visible shackles, unless there has been a case-specific, on-the-record finding of necessity’ ” (People v. Best, 19 N.Y.3d 739, 743, 955 N.Y.S.2d 860, 979 N.E.2d 1187 [2012], quoting People v. Clyde, 18 N.Y.3d 145, 153, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011], cert. denied ––– U.S. ––––, 132 S.Ct. 1921, 182 L.Ed.2d 784 [2012] ). Although this prohibition has been extended to bench trials (see People v. Best, 19 N.Y.3d at 743–744, 955 N.Y.S.2d 860, 979 N.E.2d 1187 ; People v. Whitehead, 119 A.D.3d at 1081–1082, 990 N.Y.S.2d 301 ), we discern no basis upon which to afford a criminal defendant the same protection in the context of a pretrial hearing. In any event, even if we were persuaded that the protections outlined in Deck and Best extended to pretrial hearings (see People v. Ashline, 124 A.D.3d 1258, 1259, 3 N.Y.S.3d 469 [4th Dept.2015] ), we are satisfied—upon our review of the hearing transcript—that Supreme Court articulated a particularized basis for denying defendant's request that his shackles be removed—namely, defendant's history of “numerous” violent felonies and the fact that he was in “segregated secure confinement.” Notably, Supreme Court did not blindly acquiesce to the securing deputy's representation that defendant was a “security risk” but, rather, made its own independent assessment as to whether shackling defendant was required (compare People v. Ashline, 124 A.D.3d at 1259, 3 N.Y.S.3d 469 ).

Defendant next takes issue with Supreme Court's denial of his request to call the victim as a witness at the Wade hearing. Where, as here, a defendant does not assert that the pretrial identification procedure was unduly suggestive, the decision to grant a defendant's request to call the complaining or identifying witness is a matter committed to the court's sound discretion (see People v. Taylor, 80 N.Y.2d 1, 15, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992] ; People v. Chipp, 75 N.Y.2d 327, 339, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ; People v. White, 79 A.D.3d 1460, 1461, 913 N.Y.S.2d 818 [2010], lvs. denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094 [2011], 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 [2011] ). Based upon our review of defendant's offer of proof, we do not find that Supreme Court abused its discretion in denying defendant's request on this point. Moreover, “[a]ny improprieties in pretrial identification procedures can be investigated under the time-honored process of cross-examination” (People v. Chipp, 75 N.Y.2d at 338, 553 N.Y.S.2d 72, 552 N.E.2d 608 [internal quotation marks and citation omitted] ). Defendant's remaining challenges to the manner in which the suppression hearing was conducted and/or Supreme Court's substantive rulings with respect thereto, have been examined and found to be lacking in merit. Similarly, even assuming that defendant's objections to certain of Supreme Court's evidentiary rulings at trial have merit, we find any error in this regard to be harmless in light of the overwhelming evidence of defendant's guilt.

Nor do we find merit to defendant's multifaceted ineffective assistance of counsel claim, which is addressed to trial counsel and the two other attorneys who sequentially represented defendant during the various pretrial proceedings. To the extent that defendant contends that pretrial counsel failed to properly investigate his case, facilitate his appearance at the grand jury proceeding or engage in certain motion practice and, further, pressured him to take a plea, such claims implicate matters outside the record and, as such, are properly the subject of a CPL article 440 motion (see People v. Miner, 120 A.D.3d 1449, 1450, 991 N.Y.S.2d 679 [2014] ; People v. McGowan, 117 A.D.3d 1202, 1202, 984 N.Y.S.2d 701 [2014] ; People v. Davis, 114 A.D.3d 1003, 1003, 979 N.Y.S.2d 878 [2014], lv. denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ). As to the balance of defendant's claim, it is well settled that “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, defendant will be deemed to have received the effective assistance of counsel” (People v. Brock, 107 A.D.3d 1025, 1028, 968 N.Y.S.2d 624 [2013], lv. denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] [internal quotation marks and citations omitted]; see People v. Toye, 107 A.D.3d 1149, 1152, 967 N.Y.S.2d 210 [2013], lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ; People v. Wiltshire, 96 A.D.3d 1227, 1228–1229, 947 N.Y.S.2d 199 [2012], lv. denied 22 N.Y.3d 1204, 986 N.Y.S.2d 424, 9 N.E.3d 919 [2014] ). Here, the attorneys at issue—individually and collectively—filed a comprehensive omnibus motion and otherwise engaged in appropriate pretrial motion practice, represented defendant's interests at the various suppression hearings, requested adjournments, effectively cross-examined the People's witnesses, rendered appropriate objections and made cogent opening and closing statements....