People v. Harris

• Decision Date: 27 November 2019
• Docket Number: 110587
• Citation: 115 N.Y.S.3d 477,177 A.D.3d 1199
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1199

115 N.Y.S.3d 477

The PEOPLE of the State of New York, Respondent,

v.Michael HARRIS, Appellant.

110587

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

Calendar Date: October 18, 2019

Decided and Entered: November 27, 2019

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered January 11, 2018 in Schenectady County, upon a verdict convicting defendant of the crimes of arson in the second degree, burglary in the first degree, attempted assault in the second degree, falsely reporting an incident in the third degree (two counts) and harassment in the second degree.

In May 2017, based upon events that unfolded during the early morning hours of March 11, 2017, defendant was indicted on charges of arson in the second degree, burglary in the first degree, attempted assault in the second degree, falsely reporting an incident in the third degree (two counts) and assault in the third degree. Following a seven-day jury trial, defendant was found guilty of the first five counts of the indictment and, as to the sixth count of assault in the third degree, he was convicted of the lesser included offense of harassment in the second degree. He was subsequently sentenced to various concurrent prison terms, the longest of which was 15 years. Defendant appeals.

Initially, defendant failed to preserve his challenge to the legal sufficiency of the evidence supporting his convictions, inasmuch as his general trial motion for dismissal did not include the specific arguments he raises on appeal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Chaneyfield, 157 A.D.3d 996, 996, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ). However, because defendant also argues that his convictions are not supported by the weight of the evidence, we nevertheless must determine whether the People proved each element of the crimes beyond a reasonable doubt (see People v. Henry, 166 A.D.3d 1289, 1289, 88 N.Y.S.3d 672 [2018] ; People v. Harden, 134 A.D.3d 1160, 1160, 21 N.Y.S.3d 730 [2015], lv denied 27 N.Y.3d 1133, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016] ).

The trial evidence established that defendant and his wife were patrons at a bar in the City of Schenectady, Schenectady County during the early morning hours of March 11, 2017 and that they engaged in a series of heated arguments over when and if to go home, with defendant wanting to leave and the wife wanting to stay. The evidence revealed that the couple's dispute escalated to the point of requiring police intervention around 1:00 a.m. and that, after a period of de-escalation, the couple was ultimately permitted to reenter the bar. However, testimony and video footage from the bar demonstrated that the couple's dispute escalated once again more than an hour later, this time with defendant grabbing his wife's arm to try to forcibly remove her from the bar. As established by the evidence, several patrons intervened, resulting in defendant being pushed out of the bar and into the street, where a scuffle between defendant and other patrons ensued. Deferring to the jury's credibility determinations, we find that the foregoing evidence amply supports the conclusion that, through his conduct toward his wife at the bar, defendant committed harassment in the second degree (see Penal Law § 240.26 ; People v. McMillon, 124 A.D.3d 922, 923, 1 N.Y.S.3d 416 [2015], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ).

With respect to the remaining charges, the evidence, including testimony given by the wife, established that, while defendant was engaged in the scuffle, the wife voluntarily left the bar with a male and a female and entered an apartment building across the street. As evidenced by testimony and two recorded 911 calls, defendant thereafter repeatedly reported to the police that his wife had been kidnapped. The evidence specifically showed that defendant called 911 at 3:54 a.m. to report the alleged kidnapping, that he visited the police station shortly after 4:00 a.m. to again report the alleged kidnapping and that he called 911 a second time at 4:59 a.m. to complain that his wife had not yet been found. A police officer who spoke with defendant at the station around 4:00 a.m. testified that defendant claimed that his wife had been abducted by a few men and taken to an apartment building across from the bar. Statements made by defendant to law enforcement after his apprehension suggested that he knew that his wife was in the apartment building voluntarily.

The evidence also showed that, shortly after 5:30 a.m., police officers and members of the fire department responded to a 911 call, made by a female, reporting that there was a fire in the apartment building across from the bar. As demonstrated by the evidence, the ensuing investigation revealed that the fire had been intentionally started with the aid of several 40–ounce Olde English malt liquor bottles that had been stuffed with paper towels doused in gasoline and placed on different levels of the apartment building's stairwell. The evidence revealed that, despite testing, there was no forensic evidence linking defendant to the arson scene. However, the People presented eyewitness testimony and other circumstantial evidence that pointed to defendant as having been the arsonist.

With respect to the eyewitness testimony, the male with whom the wife had left the bar (hereinafter referred to as the eyewitness) testified that he lived in the building and that, prior to the fire, he had heard a noise in the stairwell and observed defendant traverse the stairs from the first floor to the third floor several times. The eyewitness testified that he then heard "stuff falling ... down the stairs" and saw that some debris was on fire. He stated that, after informing the wife and the other female of the fire, he observed the wife argue with defendant in the hallway and that, as the wife and the other female were trying to exit the building, he saw defendant squirt a liquid in their direction and attempt to light whatever was in front of them on fire. As established by police testimony, the eyewitness identified defendant as the man he had seen in the stairwell during a show-up identification procedure conducted less than an hour after the arson.¹ Testimony from the wife and the other female corroborated certain aspects of the eyewitness's account, including that there was a noise that prompted the eyewitness to look through a window to the hallway. However, neither the wife nor the female testified to having seen defendant in the stairwell.

As for the circumstantial evidence, the police discovered several empty Olde English malt liquor bottles at defendant's house, some of which bore the same expiration date as those found at the scene. In addition, testimony revealed that, shortly after the fire, police officers found defendant at his house hiding in a crawl space underneath the basement stairs. The wife testified that defendant hid after he saw police cars arrive at the house. She further stated that she observed defendant's leather jacket – a dry-clean only item – in the washing machine.

With respect to the two convictions of falsely reporting an incident in the third degree, we find that the evidence reasonably supports the jury's conclusion that defendant knew that his wife had voluntarily gone to the apartment and that he nonetheless falsely reported to a 911 dispatcher and to the police in person that his wife had been kidnapped. Although a different verdict would not have been unreasonable, we find that defendant's convictions on two counts of falsely reporting an incident in the third degree are supported by the weight of the credible evidence (see Penal Law § 240.50[2], [3] ; People v. Hanifin, 77 A.D.3d 1181, 1182, 910 N.Y.S.2d 212 [2010] ).

As for the convictions of arson in the second degree, burglary in the first degree and attempted assault in the second degree, defendant brought out numerous inconsistencies and implausibilities in the eyewitness's account and effectively attacked the eyewitness's credibility with questions relating to his criminal history and potential motives for fabricating his testimony. Defendant also provided alternate explanations for most of the circumstantial evidence against him. Thus, in our view, it would not have been unreasonable for the jury to have acquitted defendant of the three charges relating to the apartment fire. However, viewing the evidence in a neutral light and deferring to the jury's credibility determinations, we are satisfied that defendant's convictions for arson in the second degree, burglary in the first degree and attempted assault in the second degree are supported by the weight of the evidence (see Penal Law §§ 150.15, 140.30[3] ; 120.05[2]; 110.00; People v. Baldwin, 173 A.D.3d 1748, 1748–1749, 103 N.Y.S.3d 222 [2019], lv denied 34 N.Y.3d 928, 109 N.Y.S.3d 736, 133 N.E.3d 440 [2019] ).

Although we find that the verdict was not against the weight of the evidence, we find that County Court (Sypniewski, J.) erred in denying defendant's motion to suppress a potentially incriminating statement that he made after invoking his constitutional right to counsel during a custodial interrogation and that Supreme Court erred in allowing certain video evidence of the potentially incriminating statement to be played for the jury without an adequate curative instruction. As a result of the undue prejudice flowing from these errors, the judgment of conviction must be reversed.

The right to counsel is a foundational and long "cherished principle" underlying our criminal justice system ( People v. Settles, 46 N.Y.2d 154, 160–161, ...