People v. McCommons

• Decision Date: 27 October 2016
• Citation: 2016 N.Y. Slip Op. 07049,143 A.D.3d 1150,40 N.Y.S.3d 578
• Parties: The PEOPLE of the State of New York, Respondent, v. Wade McCOMMONS, also known as Sincere, also known as Sin, Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1150
40 N.Y.S.3d 578
2016 N.Y. Slip Op. 07049

The PEOPLE of the State of New York, Respondent,
v.
Wade McCOMMONS, also known as Sincere, also known as Sin, Appellant.

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

Oct. 27, 2016.

40 N.Y.S.3d 580

Robert A. Regan, Glens Falls, for appellant.

Robert M. Carney, District Attorney, Schenectady, for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, ROSE and AARONS, JJ.

GARRY, J.P.

143 A.D.3d 1151

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered December 19, 2011 in Schenectady County, upon a verdict convicting defendant of the crimes of burglary in the first degree (two counts), attempted robbery in the first degree (six counts), unlawful imprisonment in the first degree, murder in the second degree, manslaughter in the second degree and criminal possession of a weapon in the second degree (two counts).

40 N.Y.S.3d 581

In May 2009, an armed man forced his way into the home of a woman and her nine-year-old daughter in the City of Schenectady, Schenectady County, held a gun to the woman's head and demanded money. The daughter escaped and summoned help, and the intruder fled. Nine days later, an armed man attempted to rob a Schenectady convenience store and grabbed a customer named Laurel Teer. When she struggled, he struck her on the head with his weapon, which discharged and killed her.

After an investigation, defendant was arrested and charged with various crimes arising from both incidents. Supreme Court denied defendant's pretrial motion to sever the indictments from the separate criminal transactions. Thereafter, Supreme Court conducted a combined Sandoval and Molineux hearing and issued a limited ruling permitting the People to elicit testimony and submit evidence regarding certain aspects of defendant's criminal and prison disciplinary history and his prior bad acts. Following a jury trial, defendant was convicted of burglary in the first degree (two counts), attempted robbery in the first degree (two counts) and unlawful imprisonment in the first degree arising from the home invasion. As to the convenience store shooting, he was convicted of murder in the second degree, manslaughter in the second degree, attempted robbery in the first degree (four counts) and criminal possession of a weapon in the second degree (two counts). Defendant was sentenced, as a second felony offender, to an aggregate prison term of 45 years to life. He appeals.

Defendant contends that his motion for severance should have been granted pursuant to CPL 200.20(3)(a) on the ground that the People's identification evidence connecting him with the home invasion was stronger than that pertaining to the convenience store shooting. In his motion, however, defendant relied solely upon a different claim, premised upon CPL 200.20(3)(b), that he has now abandoned. Accordingly, his appellate

143 A.D.3d 1152

argument is unpreserved (see People v. Montalbano, 285 A.D.2d 562, 562, 727 N.Y.S.2d 902 [2001], lv. denied 97 N.Y.2d 642, 735 N.Y.S.2d 499, 761 N.E.2d 4 [2001] ; People v. Jones, 224 A.D.2d 334, 335, 638 N.Y.S.2d 63 [1996], lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 171, 670 N.E.2d 455 [1996] ; People v. Bouyea, 142 A.D.2d 757, 758–759, 531 N.Y.S.2d 129 [1988] ).¹ In any event, defendant was not entitled to discretionary severance unless he demonstrated that the only basis for joinder was the similarity of the charges under CPL 200.20(2)(c) and further made the requisite showing of good cause (see CPL 200.20[3] ; People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ; People v. Raucci, 109 A.D.3d 109, 117, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ). We discern no reason to invoke our interest of justice jurisdiction to take corrective action.

Next, we reject defendant's contention that Supreme Court erred in its Sandoval ruling permitting the People to cross-examine defendant, if he testified at trial, about a 2003 conviction for criminal contempt in the first degree, a 2003 probation violation and a 2010 administrative finding of obstruction of governmental administration.² Contrary to defendant's

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claim, the fact that an administrative finding in a prison disciplinary proceeding does not constitute a criminal conviction does not preclude its use in cross-examination where, as here, its probative value on the issue of a defendant's credibility outweighs its potential prejudicial effect (see People v. Adams, 39 A.D.3d 1081, 1082, 835 N.Y.S.2d 498 [2007], lv. denied 9 N.Y.3d 872, 842 N.Y.S.2d 784, 874 N.E.2d 751 [2007] ; People v. Porter, 305 A.D.2d 933, 934, 761 N.Y.S.2d 691 [2003], lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488 [2003] ).

The 2003 contempt conviction and probation violation were not too remote in time to be of probative value. Defendant was incarcerated for two of the six years that elapsed between the 2003 events and the 2009 crimes (see People v. Ortiz, 156 A.D.2d 197, 198, 548 N.Y.S.2d 455 [1989], lv. denied 76 N.Y.2d 740, 558 N.Y.S.2d 902, 557 N.E.2d 1198 [1990] ), and it is well established that “ ‘there is no bright-line rule of exclusion based upon age of conviction’ ” (People v. Martin, 136 A.D.3d 1218, 1219, 26 N.Y.S.3d 382 [2016], lv. denied 28 N.Y.3d 972, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Sept. 20, 2016], quoting People v. Wilson, 78 A.D.3d 1213, 1216, 910 N.Y.S.2d 276 [2010], lv. denied 16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; see People v. Portis, 129 A.D.3d 1300, 1303, 12 N.Y.S.3d 328 [2015], lvs. denied 26 N.Y.3d 1088, 1091, 23 N.Y.S.3d 644, 648, 44 N.E.3d 942, 946 [2015] ). The contempt conviction was indicative of defendant's willingness to place his own interests ahead of those of society and was therefore probative of his credibility (see People v. Grant, 7 N.Y.3d 421, 424 n. 2, 823 N.Y.S.2d 757, 857 N.E.2d 52 [2006] ; People v. Olson, 110 A.D.3d 1373, 1375–1376, 974 N.Y.S.2d 608 [2013], lv. denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ; People v. Foster, 52 A.D.3d 957, 960–961, 860 N.Y.S.2d 273 [2008],

143 A.D.3d 1153

lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). The probation violation likewise bore upon his credibility (see People v. Valenti, 199 A.D.2d 617, 617–618, 604 N.Y.S.2d 652 [1993], lv. denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502 [1994] ). As for defendant's contention that the probation violation was partially premised upon two criminal charges that were never resolved, Supreme Court limited its ruling by, among other things, precluding inquiry into one of these unresolved charges. Any error related to the court's failure to mention the other unresolved charge was harmless, as the evidence against defendant was overwhelming and there was no significant probability that he would have been acquitted if the Sandoval ruling had been different (see People v. Grant, 7 N.Y.3d at 425, 823 N.Y.S.2d 757, 857 N.E.2d 52 ; People v. Boodrow, 42 A.D.3d 582, 585, 841 N.Y.S.2d 384 [2007] ).

Supreme Court's Molineux ruling was not an abuse of discretion. Evidence of prior criminal conduct or bad acts is inadmissible to establish a defendant's criminal propensity or bad character, but may be admitted when it is relevant to some material issue pertaining to the charged crime and its probative value outweighs its potential for unfair prejudice (see People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ; People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ). First, we find no error in the ruling relative to the testimony of defendant's federal probation officer. This witness testified that, a few days after the convenience store shooting, he took a photograph of defendant in which he was wearing a hooded sweatshirt that appeared to be identical in style, color and detail to one worn by the shooter. The photograph was relevant

40 N.Y.S.3d 583

to the issue of defendant's identity as the perpetrator of the crime (see People v. Cass, 18 N.Y.3d at 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 ), and the fact that the witness was a federal probation officer was necessary background information explaining why defendant was in his presence and the circumstances that led the officer to recognize the similarity in clothing (see People v. Alnutt, 107 A.D.3d 1139, 1142, 968 N.Y.S.2d 634 [2013], lv. denied 22 N.Y.3d 1136, 983...