People v. Koonce

• Decision Date: 08 November 2013
• Citation: 2013 N.Y. Slip Op. 07297,974 N.Y.S.2d 207,111 A.D.3d 1277
• Parties: The PEOPLE of the State of New York, Respondent, v. Norman KOONCE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1277

974 N.Y.S.2d 207

2013 N.Y. Slip Op. 07297

The PEOPLE of the State of New York, Respondent,

v.Norman KOONCE, Defendant–Appellant.

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

Nov. 8, 2013.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Contrary to the contention of defendant, we conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant next contends that he was denied his right to counsel when the police questioned him concerning the instant crimes while he was in custody and represented by counsel in an unrelated criminal case. We reject that contention. “Under New York's indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” ( People v. Lopez, 16 N.Y.3d 375, 377, 923 N.Y.S.2d 377, 947 N.E.2d 1155). However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” ( People v. Bing, 76 N.Y.2d 331, 344, 559 N.Y.S.2d 474, 558 N.E.2d 1011,rearg. denied76 N.Y.2d 890, 561 N.Y.S.2d 551, 562 N.E.2d 876). Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes ( see People v. Brant, 277 A.D.2d 1022, 1022, 715 N.Y.S.2d 348,lv. denied96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078). We reject defendant's contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal ( see People v. Colwell, 65 N.Y.2d 883, 885, 493 N.Y.S.2d 298, 482 N.E.2d 1214).

Defendant further contends that he was denied effective assistance of counsel because defense counsel failed to request a jury charge on the voluntariness of defendant's statements to the police and failed to object to multiple instances of alleged prosecutorial misconduct on summation. With respect to the jury charge, we conclude that defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's alleged error ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Sinclair, 90 A.D.3d 1518, 1518, 934 N.Y.S.2d 889). Indeed, we note that the statements of defendant to the police were exculpatory. With respect to the alleged instances of prosecutorial misconduct, we agree with the People that the prosecutor did not improperly bolster the adequacy of the police investigation or the testimony of the prosecution witnesses but, rather, the prosecutor's comments were fair response to defense counsel's summation ( see People v. Williams, 98 A.D.3d 1279, 1280, 951 N.Y.S.2d 616,lv. denied20 N.Y.3d 1066, 962 N.Y.S.2d 617, 985 N.E.2d 927;People v. Rivers, 82 A.D.3d 1623, 1624, 918 N.Y.S.2d 921,lv. denied17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163). Thus, defense counsel's failure to object to those comments cannot be said to have deprived defendant of effective assistance of counsel ( see People v. Hill, 82 A.D.3d 1715, 1716, 919 N.Y.S.2d 688,lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804). While we agree with defendant that the prosecutor improperly denigrated the defense, that misconduct was not so egregious as to deprive defendant of a fair trial ( see People v. Heck, 103 A.D.3d 1140, 1143, 958 N.Y.S.2d 830;People v. Lopez, 96 A.D.3d 1621, 1622, 946 N.Y.S.2d 780,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920), and defense counsel's failure to object to those comments did not deprive defendant of effective assistance of counsel ( see Heck, 103 A.D.3d at 1143, 958 N.Y.S.2d 830;People v. Lyon, 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291,lv. denied15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324).

Defendant contends that the court erred in admitting in evidence a portion of a recorded jailhouse telephone call made by defendant. He contends that the taping of the telephone call without a warrant was prohibited inasmuch as, although defendant was warned that calls may be monitored or recorded, he was not expressly warned of the possible use by law enforcement of the statements made in the recorded calls. Defendant further contends that the admission of the conversation amounted to the admission of evidence of an uncharged crime. Defendant's contentions are not preserved for our review ( seeCPL 470.05[2] ) and, in any event, they are without merit. An eavesdropping warrant is not required when one of the parties to the conversation consents to the eavesdropping ( see People v. Lasher, 58 N.Y.2d 962, 963, 460 N.Y.S.2d 522, 447 N.E.2d 70;People v. Wood, 299 A.D.2d 739, 740–741, 751 N.Y.S.2d 106,lv. denied99 N.Y.2d 621, 757 N.Y.S.2d 833, 787 N.E.2d 1179), and we conclude that defendant impliedly consented to the recording here ( see generally Curley v. Board of...