People v. Jones
| Decision Date | 27 March 2001 |
| Citation | 725 N.Y.S.2d 691 |
| Parties | (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LAVELLE R. JONES, Appellant. 11627 : THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
[Copyrighted Material Omitted]
F. Stanton Ackerman, Albany, for appellant.
Paul A. Clyne, District Attorney (Kimberly A. Mariani of counsel), Albany, for respondent.
Before: Cardona, P.J., Mercure, Carpinello, Mugglin and Rose, JJ.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 6, 1999, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), burglary in the first degree, robbery in the first degree, robbery in the second degree and intimidating a witness in the third degree.
Defendant's convictions arise out of two violent incidents at Erik Mitchell's apartment in the City of Albany. In the first incident on October 4, 1996, defendant, Matt Parsons, Zakee Abdul-Hameed, Pierre Lyons and Carl "Haniff" Dukes forced their way into Mitchell's apartment and rendered helpless the two persons present by binding and gagging them, spraying mace in their faces and striking one with a pistol. In addition to robbing those victims, defendant and his companions stole property belonging to Mitchell, who was not present. In the second incident on February 28, 1997, defendant allegedly returned to the apartment with Lyons and Dukes to dissuade Mitchell from testifying regarding the earlier robbery. When Mitchell proved uncooperative, Dukes shot him in the head, ultimately causing his death. In October 1997, defendant was apprehended in New York City on unrelated charges and then taken to Albany where he was interrogated and charged in connection with both incidents at Mitchell's apartment.
At the ensuing trial, the jury found defendant guilty of burglary in the first degree, robbery in the first degree and robbery in the second degree in connection with the first incident, and of two counts of murder in the second degree (felony murder and depraved indifference murder) and intimidating a witness in the third degree in connection with the second incident. County Court sentenced defendant to concurrent prison terms of 12½ to 25 years on the first degree robbery and first degree burglary convictions, 7½ to 15 years on the second degree robbery conviction and 1 to 4 years on the intimidating a witness conviction, such terms to run consecutively with concurrent terms of 25 years to life on the murder convictions. Defendant appeals.
Defendant first contends that his oral and written statements were improperly admitted at trial because they were procured after he was represented by Legal Aid on the New York City charges. The record, however, contains no evidence that defendant met with an attorney regarding those charges or that the detectives investigating the Albany incidents were aware of the representation alleged by defendant. At the suppression hearing, Albany detective Anthony Ryan testified that he did not know that a Legal Aid representative had interviewed defendant and defendant never notified him of representation by Legal Aid. Deborah Conrad, a New York City Assistant District Attorney, testified that defendant's intake interview had been with someone from a court agency solely for the purpose of ascertaining his eligibility for Legal Aid representation. According to defendant's own testimony, the interview occurred while he was in a holding cell, lasted only 10 minutes, and consisted of questions relating only to his financial and family status. There is no evidence that Legal Aid did anything to accept his case or represent him. Thus, County Court did not err in finding that defendant was not represented by an attorney when the police questioned him regarding the Albany charges (see, People v West, 81 N.Y.2d 370, 377; People v Ruff, 81 N.Y.2d 330, 333; People v Kazmarick, 52 N.Y.2d 322; People v Blanchard, 279 A.D.2d 808, 718 N.Y.S.2d 722).
Defendant argues that his statements also were involuntary because the police avoided his arraignment in New York City to prevent him from meeting with an attorney, and then deprived him of food and sleep for approximately 33 hours before procuring his statements through coercion and deception. The record, however, shows that the New York City charges were abandoned due to insufficient evidence and in light of the more serious Albany charges. As a result, no arraignment would have taken place regardless of police conduct and defendant was not deceived by the promise that those charges would be dropped. Defendant's contention that a lack of food and sleep rendered his statements involuntary also is without merit. The record indicates that defendant had opportunities to eat and sleep, and that after two hours of sleep and an additional reading of his Miranda rights, defendant confessed to his involvement in the murder and typed his own statement. Although defendant contradicted the detectives' account of the trip to Albany and the interrogations, County Court, which had the benefit of viewing witnesses and weighing credibility, rejected his account. Affording great deference to this factual finding, we conclude that County Court properly denied the motion to suppress (see, People v Ruger, 279 A.D.2d 795, 718 N.Y.S.2d 732; People v Blanchard, supra; People v Guillery, 267 A.D.2d 781, lv denied 94 N.Y.2d 920; People v May, 263 A.D.2d 215, lv denied 94 N.Y.2d 950).
Defendant's next contention, that the prosecutor made numerous prejudicial remarks impugning the credibility of defendant and defense witnesses and provoked defendant to an emotional outburst after touching him in the presence of the jury, is without merit. Despite the factual recitations in defendant's brief, there is no record evidence that the prosecutor touched him or that his counsel objected to the prosecutor's conduct on that basis at that time. Viewed as a whole, the prosecutor's summation represented fair commentary on the evidence and witnesses as well as rebuttal of defendant's version of the events and defense counsel's summation (see, People v Ashwal, 39 N.Y.2d 105, 109; People v Corniel, 258 A.D.2d 812, 815, lv denied 93 N.Y.2d 968). Absent evidence of a "flagrant and pervasive pattern of prosecutorial misconduct", a new trial is unwarranted (People v Demming, 116 A.D.2d 886, 887, lv denied 67 N.Y.2d 941; see, People v Brown, 252 A.D.2d 835, 836, lv denied 92 N.Y.2d 923).
We also reject defendant's challenge to the weight of the trial evidence on the charges of depraved indifference murder and felony murder. Defendant's written statement that he accompanied Dukes and Lyons to prevent Mitchell from testifying and the independent evidence that Mitchell was shot to death establish that defendant intended to intimidate a witness (see, Penal Law § 215.15) and that the killing occurred in the course of that felony (see, Penal Law § 125.25 [3]; see also, People v Safian, 46 N.Y.2d 181, 186, cert denied...
To continue reading
Request your trial