People v. McGee

• Decision Date: 21 March 2013
• Citation: 2013 N.Y. Slip Op. 01867,986 N.E.2d 907,964 N.Y.S.2d 73,20 N.Y.3d 513
• Parties: The PEOPLE of the State of New York, Respondent, v. Demetrius McGEE, Appellant.
• Court: New York Court of Appeals Court of Appeals

20 N.Y.3d 513

986 N.E.2d 907

964 N.Y.S.2d 73

2013 N.Y. Slip Op. 01867

The PEOPLE of the State of New York, Respondent,

v.Demetrius McGEE, Appellant.

Court of Appeals of New York.

March 21, 2013.

Barbara J. Davies, Chief Attorney, Legal Aid Bureau of Buffalo, Buffalo (Karen C. Russo–McLaughlin and David C. Schopp of counsel), for appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery and Donna A. Milling of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

According to the proof presented at trial, viewed in the light most favorable to the People, defendant Demetrius McGee drove a Chevy Equinox down Cambridge Street in Buffalo while codefendant Mychal Carr fired shots toward civilians, cars and homes from the front passenger window of the vehicle. Law enforcement personnel immediately responded to the scene and, rather than surrendering, defendant led multiple police vehicles on a high-speed chase through the city. At one point during the pursuit, Officer Ron Clark nearly caught up to the Equinox. When Clark was within one car length, defendant suddenly swerved into the oncoming lane of traffic in a manner that gave Carr a clearer shot at the police officer. Carr leaned out the front passenger window and fired two or three shots at Clark but the shots missed; one bullet ricocheted off the rear driver's side door of the patrol car. As Carr slipped back into the Equinox, Clark saw that he was holding a silver handgun. Officer Clark lost sight of the Equinox as it sped away. A few minutes later the Equinox was found abandoned and both defendant and Carr were apprehended attempting to flee the area on foot. A silver handgun bearing DNA evidence linking it to Carr was found nearby. Remarkably, no one was injured during the initial incident or the car chase.

At the joint trial of defendant and Carr, both men were convicted on an accomplice theory of reckless endangerment in the first degree for the Cambridge Street shootings and attempted murder in the first degree for the shots fired at Officer Clark. On appeal, defendant argued that the indictment should be dismissed because the evidence presented at trial was legally insufficient and, alternatively, that he was entitled to reversal of his conviction and a new trial based on the ineffective assistance of trial counsel. The Appellate Division rejected these contentions (87 A.D.3d 1400, 930 N.Y.S.2d 117 [4th Dept.2011] ), as do we.

Repeating the argument he made in his motion to dismiss at trial, defendant asserts that the evidence was insufficient to support the conviction because the only proof connecting him to the car chase was a spontaneous statement he made after being apprehended that he was “just the driver” of the vehicle. Claiming that this statement was uncorroborated, defendant maintains that reversal of the conviction and dismissal of the indictment was required pursuant to CPL 60.50. That statute precludes a person from being convicted of a crime based solely on a confession unless it is corroborated “ with[ ] additional proof that the offense charged has been committed.” The purpose of this requirement is to “avert the danger that a crime may have been confessed when no crime in any degree has been committed by anyone” ( People v. Chico, 90 N.Y.2d 585, 590, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997] [internal quotation marks and citation omitted] ). Accordingly, CPL 60.50 “does not mandate submission of independent evidence of every component of the crime charged” but merely requires “some proof, of whatever weight, that a crime was committed by someone” ( id. at 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [citation omitted] ).

Here, there was ample independent evidence that a crime was committed since a civilian eyewitness testified about the Cambridge Street shooting incident, several police officers recounted the events relating to the car chase and Officer Clark described the firing of shots at his vehicle. Nor was defendant's statement the only evidence connecting him to the crime—a police officer identified defendant at trial as the driver of the Equinox and defendant was arrested not far from the abandoned vehicle while attempting to flee the area.

On appeal, defendant raises several other challenges to the sufficiency of the evidence that were not presented to the trial court, arguing that his attorney was constitutionally deficient for failing to move to dismiss the indictment based on these claims. Given that defendant alleges that his trial counsel rendered ineffective assistance, we begin by noting that defendant's attorney mounted a vigorous defense, ably arguing motions such as a Sandoval application, actively participating in the voir dire of prospective jurors, making a cogent opening statement, cross-examining the People's witnesses, lodging appropriate objections and offering an articulate closing argument that marshaled the evidence and pointed out weaknesses in the People's proof for the benefit of defendant. That being said, we have recognized that a failure to make a significant argument may, in a rare case, result in a finding of constitutionally deficient representation, despite an attorney's otherwise adequate performance, “but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [citations omitted]; see People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ). To rise to that level, the omission must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy. For example, “[i]n Turner, we determined that defendant had a meritorious record-based ineffective assistance of counsel claim because defense counsel had objected to the submission of a lesser-included offense but had neglected to raise a clear-cut and completely dispositive statute of limitations defense relating to that charge” ( People v. Brunner, 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] [internal quotation marks omitted], citing Turner, 5 N.Y.3d at 481, 806 N.Y.S.2d 154, 840 N.E.2d 123).

In this case, defense counsel was not ineffective for failing to raise the sufficiency arguments identified on appeal because they are not fairly characterized as clear-cut and dispositive in defendant's favor ( see Brunner, 16 N.Y.3d 820, 922 N.Y.S.2d 248, 947 N.E.2d 139 [it was not ineffective for counsel to fail to make CPL 30.30 motion where there was negative precedent and the applicability of various exclusions was debatable]; People v. Borrell, 12 N.Y.3d 365, 369, 881 N.Y.S.2d 637, 909 N.E.2d 559 [2009] [counsel was not ineffective for failing to raise issue of “uncertain efficacy”] ). To the contrary, the contentions highlighted on appeal are of dubious efficacy as is evident from precedent existing at the time of trial. Defendant claims that trial counsel should have argued that the proof was insufficient to support an inference that Carr—the shooter—intended to kill a police officer or that defendant shared Carr's intent. But we rejected...