People v. Guy

• Decision Date: 01 March 2012
• Citation: 2012 N.Y. Slip Op. 01519,93 A.D.3d 877,939 N.Y.S.2d 613
• Parties: The PEOPLE of the State of New York, Respondent, v. Eshon GUY, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01519

93 A.D.3d 877

939 N.Y.S.2d 613

The PEOPLE of the State of New York, Respondent,

v.Eshon GUY, Appellant.

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

March 1, 2012.

Mitch Kessler, Cohoes, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, Acting P.J., SPAIN, KAVANAGH, STEIN and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered July 23, 2009, upon a verdict convicting defendant of the crimes of murder in the first degree, burglary in the first degree, attempted robbery in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the first degree and tampering with physical evidence.

Defendant appeals from his conviction of various crimes, including first degree murder, stemming from an April 2008 robbery and shooting death of a man in the City of Schenectady, Schenectady County. With the cooperation of several other individuals, all of whom testified against defendant at trial pursuant to cooperation agreements with the People, defendant was held responsible for plotting to rob the victim—a marihuana dealer—of drugs and money, burglarizing an apartment thought to belong to the victim, attempting to rob the victim at gunpoint, shooting in the direction of another individual, causing the victim's death by shooting him in the back, and attempting to disassemble and conceal the murder weapon. Defendant was sentenced, as a second violent felony offender, to life in prison without parole on the murder conviction, and concurrent prison terms for the other convictions. We affirm.

Defendant first contends that he was deprived of his constitutional right to trial by a jury of his choice when County Court discharged a juror over his objection. To be sure, after the jury has been sworn, a juror may be dismissed over a defendant's objection only where the court finds that the juror is “ ‘grossly unqualified to serve’ ” ( People v. Rodriguez, 71 N.Y.2d 214, 219, 524 N.Y.S.2d 422, 519 N.E.2d 333 [1988], quoting People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987]; see CPL 270.35[1] ). However, a court must discharge a juror when, after a “probing and tactful” in camera interview with the potentially unqualified juror and in the presence of counsel ( People v. Buford, 69 N.Y.2d at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901), it becomes obvious that the juror “ ‘possesses a state of mind which would prevent the rendering of an impartial verdict’ ” ( id. at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901, quoting People v. West, 92 A.D.2d 620, 622, 459 N.Y.S.2d 909 [1983] [Mahoney, P.J., dissenting], revd. 62 N.Y.2d 708, 476 N.Y.S.2d 530, 465 N.E.2d 37 [1984] ). Further, the trial court is accorded “great deference” in deciding whether a juror is grossly unqualified ( People v. Bradford, 300 A.D.2d 685, 688, 750 N.Y.S.2d 367 [2002], lvs. denied 99 N.Y.2d 612, 615, 757 N.Y.S.2d 823, 826, 787 N.E.2d 1169, 1172 [2003] ), because it “is in the best position to assess partiality in an allegedly biased juror” ( People v. Rodriguez, 71 N.Y.2d at 219, 524 N.Y.S.2d 422, 519 N.E.2d 333).

Here, the discharged juror sent a note to County Court that read: “I live on [Hamilton] Hill [in the City of Schenectady, Schenectady County,] and I recognize at least four people so far. I've lived on the Hill, in the same house, for 38 years. I have panic attacks I'm getting nervous about. I don't know them by name, just their faces, and think they recognize me. Very possible somebody that I will know. So very sorry.” Defendant does not dispute that, upon receiving the note, the court conducted a sufficient in camera inquiry ( compare People v. Lapage, 57 A.D.3d 1233, 1236, 871 N.Y.S.2d 429 [2008] ). In the presence of counsel, the court questioned the juror twice, giving counsel the opportunity to ask questions and to present arguments after each interview. The juror explained that for the past eight years she has taken daily medication for anxiety and that she was experiencing increased panic attacks since being selected as a juror. When specifically asked whether the situation would affect her ability to be fair, initially the juror's responses were equivocal but, when pressed as to whether her anxiety would permit her to deliberate fairly, she eventually stated, “I don't think I can do it.” She also told County Court that she could not guarantee that her stress would not influence her. Under these circumstances, we defer to the court's finding that the juror's fears would interfere with her ability to carry out her duties as a juror in an impartial manner and, thus, we conclude that she was properly discharged on the ground of being grossly unqualified ( see People v. Galvin, 112 A.D.2d 1090, 1090–1091, 492 N.Y.S.2d 836 [1985], lv. denied 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 [1985]; see also People v. Lennon, 37 A.D.3d 853, 853, 830 N.Y.S.2d 770 [2007], lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 773, 872 N.E.2d 886 [2007]; People v. Burse, 299 A.D.2d 911, 912, 749 N.Y.S.2d 350 [2002], lv. denied 99 N.Y.2d 613, 757 N.Y.S.2d 823, 787 N.E.2d 1169 [2003]; compare People v. Buford, 69 N.Y.2d at 299–300, 514 N.Y.S.2d 191, 506 N.E.2d 901; People v. Bradford, 300 A.D.2d at 688, 750 N.Y.S.2d 367).

Next, defendant asserts that County Court improperly admitted testimony that revealed to the jury that he was incarcerated while awaiting trial and, thus, deprived him of his right to the presumption of innocence. Contrary to the People's position, we find this issue preserved for appellate review. Defendant objected to the witness's testimony and, alternatively, requested that the testimony be limited in scope. After the court directed that the witness would be permitted to testify to a conversation he had with defendant in the jail infirmary, but could not testify that he knew defendant previously or that defendant was in jail at the time of the trial, the court then noted to defense counsel, “You have an exception to my ruling.” Under these circumstances, it was not necessary for defendant to renew his objection to the testimony as limited ( see CPL 470.05[2]; People v. Cobos, 57 N.Y.2d 798, 800, 455 N.Y.S.2d 588, 441 N.E.2d 1106 [1982] ). Likewise, we do not find that defendant waived this objection when, during cross-examination, defense counsel questioned the witness about his incarceration. For the most part, counsel's questions about incarceration were directed at the witness's incarceration at other facilities prior to his incarceration with defendant, and those questions that were related to defendant did not unduly emphasize the fact that he was incarcerated.

Turning to the merits, however, we find no error in County Court's admission of this testimony regarding defendant's incarcerated status as it was “inextricably intertwined” with other, relevant testimony ( People v. Conrow, 13 A.D.3d 1116, 1117, 787 N.Y.S.2d 800 [2004], lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677 [2005] ) and served a legitimate state interest ( see People v. Jenkins, 88 N.Y.2d 948, 950–951, 647 N.Y.S.2d 157, 670 N.E.2d 441 [1996]; compare People v. Connor, 137 A.D.2d 546, 550, 524 N.Y.S.2d 287 [1988] ). The permitted testimony was carefully limited, revealing only the site of the conversation—the jail infirmary—which could not fairly be extracted from the highly probative testimony regarding defendant's admissions. Further, defendant did not request a curative instruction, perhaps because such an instruction may needlessly have drawn the jury's attention to defendant's incarceration. Under these circumstances, we hold that admission of the testimony was proper and did not deprive defendant of due process or undermine the presumption of innocence ( see People v. Jenkins, 88 N.Y.2d at 951, 647 N.Y.S.2d 157, 670 N.E.2d 441; People v. Rhodes, 49 A.D.3d 1022, 1023, 859 N.Y.S.2d 747 [2008], lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008]; see also People v. Pelt, 161 A.D.2d 284, 284–285, 555 N.Y.S.2d 57 [1990], lv. denied 76 N.Y.2d 862, 560 N.Y.S.2d 1002, 561 N.E.2d 902 [1990]; People v. Moore, 148 A.D.2d 754, 755, 539 N.Y.S.2d 486 [1989], lv. denied 74 N.Y.2d 667, 543 N.Y.S.2d 409, 541 N.E.2d 438 [1989] ).

We also reject defendant's assertion that County Court erred in excluding certain testimony as hearsay. At trial, Jermel Hawkins and Jerome Jordan both testified, and each admitted his role of participating in defendant's planned theft of the victim's drugs and money. Subsequent to their testimony and cross-examination, defendant requested that the court issue an order to produce two witnesses, Deandre McCaskill and Eliel Pope, who had been incarcerated with Hawkins and Jordan and whose proposed testimony might establish that Hawkins and Jordan were planning to coordinate their testimony in order to place responsibility for the homicide on defendant. Defendant also suggested that McCaskill might testify that a police officer attempted to induce McCaskill to make a false statement incriminating defendant. The court determined that such testimony constituted hearsay and denied defendant's applications.

With respect to the proffered testimony that Hawkins and Jordan were overheard discussing their intent to place the blame on defendant for the homicide, defendant argues that such statements were not inadmissible hearsay offered for the truth of the matter asserted but were verbal acts or, alternatively, the res gestae of perjury. Under the verbal act doctrine, words which accompany certain acts or conduct are admissible as nonhearsay because they are not offered to prove the truth of the statement but, rather, to assist in giving legal significance to some “otherwise ambiguous conduct” ( People v. Acomb, 87 A.D.2d 1, 6, 450 N.Y.S.2d 632 [1982]; see Matter of...