People v. McCray

• Decision Date: 26 July 2016
• Citation: 38 N.Y.S.3d 682,2016 N.Y. Slip Op. 26248,53 Misc.3d 19
• Parties: The PEOPLE of the State of New York, Respondent, v. Harold McCRAY, Appellant.
• Court: New York Supreme Court — Appellate Term

53 Misc.3d 19

38 N.Y.S.3d 682

2016 N.Y. Slip Op. 26248

The PEOPLE of the State of New York, Respondent,

v.Harold McCRAY, Appellant.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

July 26, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York City (Arthur H. Hopkirk of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Ann Bordley and Alla Ageyeva of counsel), for respondent.

PRESENT: PESCE, P.J., SOLOMON and ELLIOT, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J.), rendered November 9, 2012. The judgment convicted defendant, upon a jury verdict, of forcible touching, endangering the welfare of a child, sexual abuse in the third degree, and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

On April 9, 2012, the People charged defendant, in an information, with forcible touching (Penal Law § 130.52 ), endangering the welfare of a child (Penal Law § 260.10[1] ), sexual abuse in the third degree (Penal Law § 130.55 ), and harassment in the second degree (Penal Law § 240.26[1] ), alleging that, on March 24, 2012, at about 12:20 p.m., in the restroom of a branch of the Brooklyn Public Library, defendant had approached the complainant, a 14–year–old male, and groped his buttocks and penis. The complainant returned immediately to his home, located a few blocks from the library, and reported the incident to his mother, who called 911. She spoke briefly with the 911 operator before handing the telephone to the complainant, who recounted the incident and provided a description of his assailant. Following a police investigation, which included interviews with the complainant at his home and with library personnel, two officers located defendant, who matched the description given by the complainant. Defendant made several statements to the police which, while nominally exclupatory, revealed knowledge of numerous details of the incident as recounted by the complainant, such as the complainant's name, and included the admission, “I was stupid.” Defendant was arrested, and, following a waiver of the Miranda warnings, authored a written statement wherein he again provided numerous details of the incident that only someone involved in the incident could have known, but insisted that his encounter with the complainant had involved no inappropriate conduct. The complainant identified defendant at a corporeal lineup.

The People served and filed a notice of their intent to offer certain of defendant's statements (see CPL 710.30[1][a] ), which notice did not include the statement, “I was stupid.” At a combined Payton, Mapp, Dunaway, and Wade hearing, the prosecutor acknowledged that the statement, “I was stupid,” reported by an investigating police officer on her direct testimony, was not included in the statement notice, and initially represented that the People would not offer that statement at the trial. The defense proceeded to cross-examine the witness with respect to the circumstances of defendant's having made this and other statements prior to and following the arrest, ostensibly to litigate their voluntariness and issues relating to the propriety of the arrest and the postarrest investigation. At the hearing's conclusion, the prosecutor argued that, in light of that litigation, the People should be allowed to use the statement. The hearing court (Jacqueline D. Williams, J.) agreed and denied suppression.

At a jury trial, the Criminal Court (Desmond A. Green, J.), granted the prosecutor's request to admit a recording of the 911 call (with the complainant's mother's statements redacted) under the excited utterance exception to the hearsay rule. Further, during his direct testimony, the complainant twice referred to his having viewed a photo array during the police investigation. Following summations, wherein there occurred numerous objected-to comments by both counsel, the jury convicted defendant of all of the charges.

On appeal, defendant argues that the admission of the statement “I was stupid” and the 911 recording, the improper references by the complainant to the photo array, and prosecutorial misconduct on summation deprived him of a fair trial.

The CPL 710.30 notice requirements serve to “facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by [a defendant]” (People v. Lopez, 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994] ), and, in furtherance of that end, the People are required to serve notice of their intent to offer such evidence within 15 days of arraignment and before trial (see CPL 710.30[2] ). The 15–day rule may be waived “[f]or good cause shown” (id. ), and the notice requirement is excused if the defendant has, in fact, moved for suppression (see CPL 710.30[3] ; Lopez, 84 N.Y.2d at 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 ; e.g. People v. Bianca, 91 A.D.3d 1127, 1130, 936 N.Y.S.2d 743 [2012] ). While the waiver rule is not triggered by a motion limited to preclude the use of statements on the basis of an untimely notice (see People v. Amparo, 73 N.Y.2d 728, 729, 535 N.Y.S.2d 588, 532 N.E.2d 94 [1988] ), where the motion is also to suppress the statements and a hearing on the matter has been held, the defendant has been “afforded ... the same opportunity for a court to pass upon the admissibility of the statement as he would have had if timely notice had been given,” and in such case the waiver rule applies (id.; see e.g. People v. Merrill, 87 N.Y.2d 948, 641 N.Y.S.2d 587, 664 N.E.2d 498 [1996], revg. on dissenting op. of Denman, P.J., and Balio, J., 212 A.D.2d 987, 988, 624 N.Y.S.2d 702 [1995] ). The waiver rule has been invoked where an unnoticed statement was elicited by the prosecutor and defense counsel at a Huntley hearing, a procedure deemed “sufficient to put the defendant on notice of the People's intent to use the statement ... [and to provide] ample opportunity to challenge the statement at that time” (People v. Schnugg, 257 A.D.2d 669, 670, 684 N.Y.S.2d 581 [1999] ). Here, defendant, granted a Huntley hearing on the noticed statements and alerted to the unnoticed statement, was afforded a full opportunity to litigate the statement's admissibility, and, in fact, actively litigated its admissibility on multiple grounds at the hearing and in a posthearing memorandum of law, notwithstanding the prosecutor's initial concession, in effect, that the statement, not properly noticed, could not be used. By proceeding in this fashion, defendant “waived preclusion on the ground of lack of notice because (he) was given a full opportunity to be heard on the voluntariness of that statement at the suppression hearing” (People v. Davis, 118 A.D.3d 1264, 1266, 987 N.Y.S.2d 537 [2014], quoting People v. Dean, 299 A.D.2d 892, 893, 750 N.Y.S.2d 207 [2002] ; e.g. People v. Dillon, 30 A.D.3d 1135, 1136, 815 N.Y.S.2d 574 [2006] [the defendant's litigation of the admissibility of an unnoticed statement first elicited at a hearing rendered “any deficiency in the notice provided by the People ... irrelevant”]; see also People v. Kirkland, 89 N.Y.2d 903, 905, 653 N.Y.S.2d 256, 675 N.E.2d 1208 [1996] ; People v. Garcia, 290 A.D.2d 299, 300, 735 N.Y.S.2d 545 [2002] ; People v. Tuthill, 24 Misc.3d 46, 50, 884 N.Y.S.2d 562 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2009] ). Defendant does not argue that the hearing evidence was insufficient to support the trial court's denial of suppression on grounds other than a notice violation.

We cannot agree with defendant's contention that the prosecutor's initial determination to refrain from offering the statement was binding on the People (see CPL 710.60[2][b] ) notwithstanding defendant's subsequent litigation of the statement's admissibility. By its terms, CPL 710.60(2)(b) applies to summary, prehearing dispositions of motions to suppress evidence (see People v. White, 73 N.Y.2d 468, 477–478, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989] ). The prosecutor's initial representation that the People would not seek to use the statement was not made in the prehearing context, thereby depriving the defense of an opportunity to challenge the statement's admissibility. Defendant also contends that he cannot be held to have waived the notice-violation claim solely because he questioned the witness about the statement, inasmuch as the inquiry was to investigate, among other things, the admissibility of all of defendant's utterances to the arresting officers and the propriety of the official action taken by them. However, the issue here is not the use of precluded statements in the determination of related suppression issues (see e.g. People v. Apelbaum, 33 Misc.3d 4, 8–9, 930 N.Y.S.2d 401 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2011]; People v. Aldrich–O'Shea, 6 Misc.3d 35, 37, 789 N.Y.S.2d 804 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2004] ), but whether, by litigating the admissibility of the statement the People had indicated they would withhold, defendant waived a preclusion argument.

Twice during his direct testimony, the complainant referred to having viewed a photo array. At the conclusion of the complainant's testimony, the defense, acknowledging that the witness had not mentioned that defendant's photo was included in the array, moved for a mistrial on the ground that there was incurable prejudice in the fact that, since there had ensued a lineup wherein defendant had participated, the jury could only conclude that defendant's picture was in the photo array and that the complainant had made a positive identification. On appeal, defendant bases his claim of error on the risk that the jury would infer from the testimony that he “had a criminal record” because “the obvious source was an arrest photo.” A witness “may not testify as to an extrajudicial identification of a photograph of the defendant” (People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 272 N.E.2d 477 [...