People v. Martinez

• Decision Date: 05 January 2022
• Docket Number: 2016–13019,Ind. No. 392/11
• Citation: 201 A.D.3d 658,159 N.Y.S.3d 140
• Parties: The PEOPLE, etc., respondent, v. Asim MARTINEZ, appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 658

159 N.Y.S.3d 140

The PEOPLE, etc., respondent,

v.Asim MARTINEZ, appellant.

2016–13019

Ind. No. 392/11

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

Argued—May 11, 2021

January 5, 2022

Patricia Pazner, New York, NY (Jonathan Schoepp–Wong of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Thomas B. Litsky of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, CHERYL E. CHAMBERS, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered December 2, 2016, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by directing that the sentence imposed run concurrently with a sentence imposed on February 26, 2013, in connection with the defendant's prior conviction of criminal possession of a weapon in the second degree; as so modified, the judgment is affirmed.

The defendant was charged with intentionally killing the unarmed victim by discharging 12 bullets into his body. According to the medical examiner, two of the wounds to the victim's chest area were fatal. The shooting occurred minutes after a brief physical altercation involving, among others, the victim, the victim's girlfriend, and the defendant's wife.

A surveillance video of the shooting shows the victim walking down a hallway, followed, approximately one minute later, by the defendant, who is first seen peering down the hallway toward the victim from a stairwell, showing only the left side of his body. The victim then approaches the defendant, who steps fully into view, revealing a firearm in his extended right hand, and immediately begins firing at the victim at close range. The defendant continues firing while standing directly over the victim, who is lying on the floor. The defendant then pauses, steps closer to the victim's head, leans down, and fires again.

The defendant previously was convicted, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree. However, the conviction of murder in the second degree was subsequently reversed by this Court because of prosecutorial misconduct, and a new trial on that count was ordered (see People v. Martinez, 127 A.D.3d 1236, 9 N.Y.S.3d 88 ).

After the second trial, the defendant was convicted of murder in the second degree, and the Supreme Court directed the sentence to run consecutively to the sentence imposed on his prior conviction of criminal possession of a weapon in the second degree. The defendant appeals.

Contrary to the defendant's contention, the Supreme Court did not violate his right to be present when, on the second day of trial, it heard testimony from a single out-of-state witness in his absence. A defendant's statutory and constitutional right to be present at all material stages of his or her trial may be waived (see People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ), even where, as here, the defendant is in custody at the time of trial (see People v. Epps, 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566 ). "A valid waiver of the right to be present at trial will be implied if the record reflects that the defendant is aware that trial will proceed even though he or she fails to appear" ( People v. Forrest, 186 A.D.3d 1395, 1397, 131 N.Y.S.3d 28 [internal quotation marks omitted]). Here, before proceeding in the defendant's absence, the court determined, based on the surrounding circumstances, that the defendant's absence was deliberate, made a record of the reasons for its finding, and exercised its sound discretion upon consideration of all appropriate factors (see id. at 1398, 131 N.Y.S.3d 28 ).

The defendant contends that he was deprived of a fair trial because the prosecutor elicited evidence of prior bad acts during the cross-examination of the defendant's expert and during the testimony of an expert rebuttal witness (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ). Contrary to the defendant's contention, this evidence was properly admitted, inter alia, to explain the experts’ opinions with respect to the defendant's extreme emotional disturbance defense (see People v. Cass, 18 N.Y.3d 553, 942 N.Y.S.2d 416, 965 N.E.2d 918 ; People v. Diaz, 62 A.D.3d 157, 168, 876 N.Y.S.2d 69, affd 15 N.Y.3d 40, 904 N.Y.S.2d 343, 930 N.E.2d 264 ; People v. Doczy, 210 A.D.2d 425, 620 N.Y.S.2d 408 ; see also Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 441, 318 N.Y.S.2d 705, 267 N.E.2d 452 ). Additionally, the Supreme Court balanced the jury's need to be informed of the basis for the experts’ opinions against the prejudice to the defendant (see People v. Diaz, 62 A.D.3d at 168, 876 N.Y.S.2d 69 ). In addition, the court's limiting instruction to the jury after each expert's testimony and as part of the court's final instruction served to alleviate any prejudice resulting from the admission of that evidence (see People v. Beer, 146 A.D.3d 895, 896, 47 N.Y.S.3d 38 ). To the extent any Molineux evidence was improperly admitted, any error was harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Arafet, 13 N.Y.3d 460, 467, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. Braun, 199 A.D.2d 993, 606 N.Y.S.2d 469 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 95, 455 N.Y.S.2d 675 ). However, under the circumstances of this case, the Supreme Court erred in directing that the defendant's sentence run consecutively to the sentence imposed on his prior conviction of criminal possession of a weapon in the second degree. " ‘So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible’ " ( People v. Malloy, 33 N.Y.3d 1078, 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 [emphasis added], quoting People v. Brown, 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 ). Here, the People failed to meet their burden of establishing that consecutive sentences were legal (see People v. Boyd, 192 A.D.3d 1659, 144 N.Y.S.3d 278 ).

Finally—and contrary to the view expressed by our dissenting colleagues—we find that the Supreme Court's questioning of witnesses did not deprive the defendant of a fair trial. "[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of the trial, and, if necessary, to develop factual information" ( People v. Adams, 117 A.D.3d 104, 109, 983 N.Y.S.2d 246 [internal quotation marks omitted]). However, "[a] Trial Judge's examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness" ( People v. Yut Wai Tom, 53 N.Y.2d 44, 57, 439 N.Y.S.2d 896, 422 N.E.2d 556 ). That being said, not every departure from this principle requires reversal and a new trial (see People v. Moulton, 43 N.Y.2d 944, 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243 ), and there is room for harmless error analysis so long as the trial court's actions were not so inherently prejudicial as to amount to a violation of the defendant's right to a fair trial (cf. People v. Nelson, 27 N.Y.3d 361, 371–372, 33 N.Y.S.3d 814, 53 N.E.3d 691 ; People v. Clyde, 18 N.Y.3d 145, 153–154, 938 N.Y.S.2d 243, 961 N.E.2d 634 ).

Here, while many of the Supreme Court's interventions were proper attempts to clarify testimony and facilitate the progress of the trial, we agree with our dissenting colleagues that other remarks would better have been left unsaid. Nevertheless, when the record is viewed as a whole, the court's conduct, to the extent it was improper, did not prevent the jury from arriving at an impartial verdict on the merits (see People v. Moulton, 43 N.Y.2d at 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243 ; People v. Russo, 41 N.Y.2d 1091, 396 N.Y.S.2d 353, 364 N.E.2d 1124 ; People v. Adams, 117 A.D.3d at 106, 983 N.Y.S.2d 246 ; People v. Jenkins, 25 A.D.3d 444, 445, 807 N.Y.S.2d 90 ; People v. Brown, 262 A.D.2d 570, 573, 694 N.Y.S.2d 666, affd 95 N.Y.2d 776, 710 N.Y.S.2d 837, 732 N.E.2d 944 ; People v. Gonzalez, 183 A.D.2d 783, 586 N.Y.S.2d 515 ).

In reaching this conclusion, we are mindful that the Supreme Court's most objectionable interventions occurred during the testimony of the defendant's expert on extreme emotional disturbance, Marc Janoson. In relevant part, Janoson testified that the defendant had told him, during pretrial interviews, that he had "blacked out" after hearing that his wife had been hit in the face and that the defendant went "on remote control" and was "not fully aware of what he was doing." Janoson testified that the defendant told him that he did not remember the shooting itself or what happened thereafter until the defendant "sort of came to and began to snap out of it" some time later. Janoson did not speak with any fact witness other than the defendant. In addition to his pretrial interviews with the defendant, Janoson also administered the Minnesota Multiphasic Personality Inventory test (hereinafter MMPI–2) on the defendant. Janoson's expert opinion—which was extremely limited in its scope—was that the MMPI–2 test results were "consistent with [the] narrative" the defendant provided during his pretrial interviews.

In rebuttal, the People were permitted to introduce part of the defendant's testimony at the first trial, in which the defendant provided a much more detailed narrative of the events leading up to, and immediately following, the shooting. Specifically, the defendant testified that he purchased a firearm in 2008, which he kept in a locked safe in his bedroom closet. On the day of the shooting, while the defendant was in the bathroom, a brief physical altercation took place in the hallway just...