People v. Meacham

• Decision Date: 09 June 2017
• Citation: 151 A.D.3d 1666,57 N.Y.S.3d 279
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephanie A. MEACHAM, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1666

57 N.Y.S.3d 279

The PEOPLE of the State of New York, Respondent,

v.Stephanie A. MEACHAM, Defendant–Appellant. (Appeal No. 1.).

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

June 9, 2017.

D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.

Barry L. Porsch, District Attorney, Waterloo, for Respondent.

PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting her following a jury verdict of gang assault in the first degree ( Penal Law § 120.07 ).Following that conviction, defendant, in appeal No. 2, entered a plea of guilty to attempted assault in the second degree (§§ 110.00,120.05

[2] ), with a promise that the sentence in appeal No. 2 would run concurrently with the sentence in appeal No. 1.The only contention raised with respect to appeal No. 2 is that, if the judgment in appeal No. 1 is reversed, then the judgment in appeal No. 2 must be reversed also (see generallyPeople v. Pichardo,1 N.Y.3d 126, 129, 769 N.Y.S.2d 791, 802 N.E.2d 141 ).For the reasons that follow, we conclude that the judgment in appeal No. 1 should be modified as a matter of discretion in the interest of justice with respect to the sentence only, and as modified, affirmed.As a result, there is no basis to reverse the judgment in appeal No. 2.

Defendant contends that County Court abused its discretion in consolidating for trial defendant's indictment in appeal No. 1 with those of the two codefendants.We reject that contention for the same reasons we rejected that contention on the appeal of one of her codefendants ( People v. Snyder,84 A.D.3d 1710, 1711, 922 N.Y.S.2d 711, lv. denied17 N.Y.3d 810, 929 N.Y.S.2d 569, 953 N.E.2d 807 ).Defendant and her two codefendants "were part of a group that assaulted the same victim" and, although defendant's role in the victim's injuries was significantly less than those of her codefendants, the evidence against the three codefendants "was virtually identical"(id. ).Moreover, "there were no irreconcilable conflicts between the various defense theories ... [;] none of the codefendants testified at trial ... [;][the] defense [of justification for one codefendant] was not inconsistent with any of the other defenses asserted at trial[;] ... the three codefendants did not accuse each other of the crime[;] and none of their attorneys acted as a second prosecutor against another codefendant"(id.;see generallyPeople v. Mahboubian, 74 N.Y.2d 174, 184–185, 544 N.Y.S.2d 769, 543 N.E.2d 34 ).Defendant contends for the first time on appeal that the jury's reception of the evidence against her was affected by the fact that she was the only woman on trial, and that contention is therefore not preserved for our review (seePeople v. Osborne,88 A.D.3d 1284, 1285, 930 N.Y.S.2d 367, lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922, reconsideration denied19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821;People v. Wooden,296 A.D.2d 865, 866, 745 N.Y.S.2d 803, lv. denied99 N.Y.2d 541, 752 N.Y.S.2d 602, 782 N.E.2d 580 ).We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15[6][a] ).

Defendant further contends that she was denied her right to an impartial jury based on an allegedly improper comment made by the prosecutor during jury selection.That contention is not preserved for our review inasmuch as defense counsel"fail[ed] to request any further relief after the court sustained his objection"( People v. Reyes,34 A.D.3d 331, 331, 824 N.Y.S.2d 261, lv. denied8 N.Y.3d 884, 832 N.Y.S.2d 496, 864 N.E.2d 626 ).We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15[6][a] ).

At the close of the People's case, defense counsel made a motion for a trial order of dismissal, contending that the evidence was legally insufficient to establish that defendant was "actually present" during the gang assault ( Penal Law § 120.07 ).Defense counsel renewed that motion following the close of defendant's proof, stating, "I also renew my motion to dismiss based on the legal insufficiency of the evidence."Contrary to the People's contention, defense counsel's renewal, directly referencing the earlier motion, is sufficient to preserve for our review his contention that the evidence is legally insufficient to establish that defendant was actually present for the gang assault (cf.People v. Maynard,143 A.D.3d 1249, 1250, 39 N.Y.S.3d 564, lv. denied28 N.Y.3d 1148, 52 N.Y.S.3d 299, 74 N.E.3d 684;see generallyPeople v. Hines,97 N.Y.2d 56, 61–62, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;People v. Gray,86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).We nevertheless conclude that defendant's contention lacks merit.Viewing the evidence in the light most favorable to the People(seePeople v. Contes,60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to establish that defendant was "in the immediate vicinity of the crime, and [was] capable of rendering immediate assistance to an individual committing the crime"( People v. Sanchez,13 N.Y.3d 554, 564, 893 N.Y.S.2d 803, 921 N.E.2d 570, rearg. denied14 N.Y.3d 750, 898 N.Y.S.2d 541, 925 N.E.2d 579;see§ 120.07;People v. Varughese,21 A.D.3d 1126, 1128, 801 N.Y.S.2d 415, lv. denied6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804 ).

Defendant further contends that the evidence is legally insufficient to support the conviction on the ground that there was no evidence she intended to cause serious physical injury to the victim.We note, however, that defendant's motion for a trial order of dismissal was not "specifically directed" at that alleged deficiency in the proof ( Gray,86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).In any event, that contention also lacks merit.It is well settled that "[a]defendant may be presumed to intend the natural and probable consequences of his[ or her] actions ..., and [i]ntent may be inferred from the totality of conduct of the accused"( People v. Mahoney,6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402, lv. denied3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575[internal quotation marks omitted];see generallyPeople v. Steinberg,79 N.Y.2d 673, 684–685, 584 N.Y.S.2d 770, 595 N.E.2d 845 ).

Here, after viewing the evidence in the light most favorable to the People(seeContes,60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence was sufficient to establish intent "based on evidence of defendant's conduct before, during and after the [beating] of the victim"( People v. Davis,300 A.D.2d 78, 78, 751 N.Y.S.2d 186, lv. denied99 N.Y.2d 627, 760 N.Y.S.2d 108, 790 N.E.2d 282 ).We further conclude, after viewing the evidence in light of the elements of the crime as charged to the jury (seePeople v. Danielson,9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), that the verdict is not against the weight of the evidence (seePeople v. Bleakley,69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;Snyder,84 A.D.3d at 1712, 922 N.Y.S.2d 711;People v. Meacham,84 A.D.3d 1713, 1715, 922 N.Y.S.2d 721, lv. denied17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 ).

With respect to defendant's contention that she was denied effective assistance of counsel, "we note that the constitutional right to effective assistance of counsel‘does not guarantee a perfect trial, but assures the defendant a fair trial’ "( People v. Ennis,107 A.D.3d 1617, 1620, 969 N.Y.S.2d 284, lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386, reconsideration denied23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505, quotingPeople v. Flores,84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 ).Defense counsel made appropriate motions, effectively cross-examined the People's witnesses, and pursued a viable defense strategy.In our view, defense counsel made reasonable strategic decisions in an "unsuccessful attempt [ ] to advance the best possible defense"( People v. Henry,95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 ).We thus conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation"( People v. Baldi,54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).To the extent that defendant contends that defense counsel was ineffective in advising her on whether to accept the plea offer, that contention involves matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (seePeople v. Carver,124 A.D.3d 1276, 1280, 999 N.Y.S.2d 632, affd.27 N.Y.3d 418, 33 N.Y.S.3d 857, 53 N.E.3d 734;People v. Santiago,118 A.D.3d 1032, 1033, 986 N.Y.S.2d 361 ).

To the extent that defendant preserved for our review her additional contention that she was denied a fair trial by prosecutorial misconduct (seeCPL 470.05[2] ), we conclude that it lacks merit."The alleged misconduct was ‘not so egregious as to deprive defendant of a fair trial’ "( People v. Astacio,105 A.D.3d 1394, 1396, 963 N.Y.S.2d 798, lv. denied22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ).

With respect to her sentence, defendant contends that she was penalized for exercising her...