People v. Palmer

• Citation: 204 A.D.3d 1512,167 N.Y.S.3d 697
• Decision Date: 29 April 2022
• Docket Number: 287,KA 19-00869
• Parties: The PEOPLE of the State of New York, Respondent, v. Cuansharee PALMER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1512

167 N.Y.S.3d 697

The PEOPLE of the State of New York, Respondent,

v.Cuansharee PALMER, Defendant-Appellant.

287

KA 19-00869

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

Entered: April 29, 2022

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of one count of manslaughter in the second degree ( Penal Law § 125.15 [1] ), two counts of vehicular manslaughter in the second degree (§ 125.12 [1]), four counts of aggravated driving while intoxicated ( Vehicle and Traffic Law §§ 1192 [2-a] [b] ; 1193 [1] [c] [i] [B]), and two counts of endangering the welfare of a child ( Penal Law § 260.10 [1] ). We affirm.

Defendant contends that Supreme Court erred in rejecting her Batson challenge after the People's exercise of a peremptory challenge with respect to one prospective juror because the prosecutor's facially race-neutral reasons for striking that juror were pretextual. A "trial court's determination whether a proffered race-neutral reason is pretextual is accorded ‘great deference’ on appeal" ( People v. Hecker , 15 N.Y.3d 625, 656, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ), and we see no reason to disturb that determination (see People v. Smyre , 195 A.D.3d 1458, 1459, 145 N.Y.S.3d 478 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 408, 175 N.E.3d 433 [2021] ; People v. Johnson , 195 A.D.3d 1510, 1511-1512, 150 N.Y.S.3d 438 [4th Dept. 2021] ; People v. Escobar , 181 A.D.3d 1194, 1196, 119 N.Y.S.3d 354 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 837, 151 N.E.3d 518 [2020] ).

Defendant next contends that the court erred in refusing to suppress her statements to the police and the blood test results because she was in police custody and subject to interrogation without Miranda warnings, and her consent to the blood test was involuntary. We reject that contention. "In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ " ( People v. Kelley , 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012], quoting People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ; see People v. Thomas , 166 A.D.3d 1499, 1500, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019] ). Here, upon review of the relevant factors (see People v. Lunderman , 19 A.D.3d 1067, 1068-1069, 796 N.Y.S.2d 481 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ) and giving due deference to the hearing court's credibility determinations (see People v. Clark , 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ), we conclude that "the evidence at the [suppression] hearing establishes that defendant was not in custody when [she] made the statements, and thus Miranda warnings were not required" ( People v. Bell-Scott , 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; see People v. Rounds , 124 A.D.3d 1351, 1352, 999 N.Y.S.2d 647 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ). Specifically, defendant was not in custody at the accident scene when she was placed in the back seat of a patrol car, without handcuffs, and where the brief police questioning was investigatory, not accusatory (see People v. Defio , 200 A.D.3d 1672, 1673, 159 N.Y.S.3d 600 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 465, 185 N.E.3d 986 [2022] ; People v. Chess , 162 A.D.3d 1577, 1580-1581, 79 N.Y.S.3d 433 [4th Dept. 2018] ). Defendant agreed to accompany the officer to the police station (see Bell-Scott , 162 A.D.3d at 1559, 78 N.Y.S.3d 846 ), and the evidence at the suppression hearing supports the court's determination that defendant's consent to submit to the blood test was voluntary (see Defio , 200 A.D.3d at 1673, 159 N.Y.S.3d 600 ; People v. O'Hanlon , 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 633 [4th Dept. 2004], lv denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004]). After having her blood drawn, defendant expressed her willingness to return to the police station, and the record supports the court's determination that she was not in custody when she gave her written statement, without police interrogation (see People v. Cordato , 85 A.D.3d 1304, 1309-1310, 924 N.Y.S.2d 649 [3d Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ).

Defendant also contends that she was denied a fair trial by prosecutorial misconduct during summation. Defendant's contention is largely unpreserved for our review (see People v. Coggins , 198 A.D.3d 1297, 1301, 153 N.Y.S.3d 740 [4th Dept. 2021] ; People v. Tucker , 195 A.D.3d 1547, 1548, 150 N.Y.S.3d 443 [4th Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 437 [2021] ). In any event, most of the allegedly improper comments were fair response to the comments made by the defense or fair comment on the evidence (see Coggins , 198 A.D.3d at 1301, 153 N.Y.S.3d 740 ; Tucker , 195 A.D.3d at 1549, 150 N.Y.S.3d 443 ). To the extent the prosecutor's comments exceeded those bounds, we conclude that they "were not so egregious as to deprive defendant of a fair trial" ( People v. Ali , 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277 [4th Dept. 2011], lv denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128 [2012] [internal quotation marks omitted]; see People v. Blackshell , 178 A.D.3d 1355, 1356, 117 N.Y.S.3d 393 [4th Dept. 2019], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020] ).

We reject defendant's contention that she was denied effective assistance of counsel. Inasmuch as defendant was not deprived of a fair trial by any alleged improprieties on the part of the prosecutor, we conclude that defense counsel's failure to preserve her contentions regarding prosecutorial misconduct did not deprive her of effective assistance of counsel (see People v. Bagley , 194 A.D.3d 1475, 1477, 147 N.Y.S.3d 297 [4th Dept. 2021], lv denied 37 N.Y.3d 990, 152 N.Y.S.3d 395, 174 N.E.3d 335 [2021] ; People v. Brooks , 183 A.D.3d 1231, 1232, 123 N.Y.S.3d 358 [4th Dept. 2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 848, 151 N.E.3d 529 [2020] ). In addition, defendant was not denied effective assistance of counsel by defense counsel's failure to move to reopen the suppression hearing (see People v. Sanchez , 196 A.D.3d 1010, 1013-1014, 151 N.Y.S.3d 267 [3d Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 435, 175 N.E.3d 460 [2021] ; People v. Blocker , 128 A.D.3d 1483, 1484, 8 N.Y.S.3d 809 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). Such a motion would have had "little or no chance of success" ( People v. Williams , 35 N.Y.3d 24, 45, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020] ; see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Although defense counsel demonstrated a misunderstanding of the law in asserting in his opening statement and motion for a trial order of dismissal that the People had the burden to prove that defendant voluntarily ingested alcohol (see generally People v. Cruz , 48 N.Y.2d 419, 426-428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979], appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254 [1980] ), we conclude that the error did not prejudice defendant under the circumstances of this case (see generally People v. Benevento , 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Santana , 114 A.D.3d 557, 558, 980 N.Y.S.2d 454 [1st Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [201...