People v. Personal

• Decision Date: 29 September 2017
• Docket Number: 946 KA 15-00263.
• Citation: 153 A.D.3d 1561,62 N.Y.S.3d 231
• Parties: The PEOPLE of the State of New York, Respondent, v. Derrick PERSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1561

62 N.Y.S.3d 231

The PEOPLE of the State of New York, Respondent,

v.Derrick PERSON, Defendant–Appellant.

946 KA 15-00263.

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

Sept. 29, 2017.

The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.

John J. Flynn, District Attorney, Buffalo (David Heraty of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree ( Penal Law § 160.15[4] ). The conviction arises from an incident in which defendant and a codefendant robbed the victim at gunpoint and left the scene in a vehicle driven by another codefendant (see People v. Thompson, 147 A.D.3d 1298, 1299, 47 N.Y.S.3d 532lv. denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 ; People v. Evans, 142 A.D.3d 1291, 1291, 38 N.Y.S.3d 354lv. denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 ). Defendant and the codefendants were apprehended after a high-speed police pursuit, the gun used in the robbery was found near several bullets and a magazine along the pursuit route, and the victim identified defendant and one codefendant in showup identification procedures. At trial, Supreme Court charged the jury on the affirmative defense that the gun "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged" ( § 160.15[4] ), but the jury nonetheless convicted all three defendants of robbery in the first degree.

We reject defendant's contention that the evidence established as a matter of law that the gun was not loaded during the robbery and thus is legally insufficient to support his conviction. As we previously determined on the appeal of a codefendant, the presence of ammunition in the vicinity of the gun when it was recovered supports a reasonable inference that it "was ‘loaded at the time of the crime, but unloaded at the time it was recovered’ " (Thompson, 147 A.D.3d at 1300, 47 N.Y.S.3d 532). Defendant's remaining challenges to the legal sufficiency of the evidence are not preserved for our review inasmuch as he failed to raise them in his motion for a trial order of dismissal at the close of the People's case (see People v. Gray, 86 N.Y.2d 10, 19–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). Defendant contends that, because the evidence was undisputedly sufficient to establish a lesser included offense and the court thus could not have issued a trial order of dismissal (see CPL 290.10[1][a] ; People v. Vaughan, 48 A.D.3d 1069, 1070, 850 N.Y.S.2d 735, lv. denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91, cert. denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190 ), the preservation rule set forth in Gray should not apply here. We reject that contention, and conclude that he remained obligated to raise his sufficiency challenges in his motion in order to preserve them for our review (see CPL 470.05[2] ; People v. Whited, 78 A.D.3d 1628, 1629, 910 N.Y.S.2d 626, lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 ). Notably, the court could have afforded defendant relief by declining to submit the charged degree of offense to the jury on the ground of insufficient evidence if his challenges had merit (see CPL 300.30[1] ; People v. Mayo, 48 N.Y.2d 245, 248–249, 422 N.Y.S.2d 361, 397 N.E.2d 1166 ).

Notwithstanding defendant's failure to preserve all of his sufficiency contentions for our review, "we necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of [his] challenge regarding the weight of the evidence" ( People v. Stephenson, 104 A.D.3d 1277, 1278, 960 N.Y.S.2d 823, lv. denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398, reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [internal quotation marks omitted];

see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), however, we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), including with respect to the affirmative defense (see Thompson, 147 A.D.3d at 1300, 47 N.Y.S.3d 532), as well as with respect to whether the gun specifically appeared to be a rifle when it was displayed to the victim, as required by the jury charge.

We also reject defendant's contention that he was deprived of his Sixth Amendment right of confrontation by the victim's invocation of his privilege against self-incrimination on cross-examination. The victim invoked the privilege in response to questions about a collateral matter, i.e., the underlying facts of an unrelated conviction pending on appeal, and we therefore conclude that the court properly declined to preclude his testimony in favor of charging the jury that it could consider his refusal to answer questions in evaluating his credibility (see People v. Joaquin, 150 A.D.3d 618, 619, 55 N.Y.S.3d 226 ; People v. Hickman, 60 A.D.3d 865, 866, 875 N.Y.S.2d 530, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 ; see generally People v. Siegel, 87 N.Y.2d 536, 544, 640 N.Y.S.2d 831, 663 N.E.2d 872 ; People v. Chin, 67 N.Y.2d 22, 28–29, 499 N.Y.S.2d 638, 490 N.E.2d 505 ). It was not " ‘patently clear’ " that the victim's answers could not have been used against him in the future ( People v. Grimes, 289 A.D.2d 1072, 1073, 735 N.Y.S.2d 857, lv. denied 97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361 ; see generally People v. Cantave, 21 N.Y.3d 374, 380, 971 N.Y.S.2d 237, 993 N.E.2d 1257, clarification denied 21 N.Y.3d 1070, 974 N.Y.S.2d 316, 997 N.E.2d 141 ), and the People were not obligated to offer the victim immunity in exchange for his testimony (see generally Chin, 67 N.Y.2d at 32–33, 499 N.Y.S.2d 638, 490 N.E.2d 505 ; People v. Adams, 53 N.Y.2d 241, 247–248, 440 N.Y.S.2d 902, 423 N.E.2d 379 ). In addition, we conclude that defendant was not deprived of his right of confrontation by the admission in evidence of statements made by a codefendant. Because "[t]he statements incriminated defendant, if at all, only in light of other evidence produced at trial ..., and the court directed the jury to consider the statements only against the codefendant who made them" (Thompson, 147 A.D.3d at 1300–1301, 47 N.Y.S.3d 532), the codefendant "is not considered to be a witness against ... defendant within the meaning of the Sixth Amendment" ( id. at 1301, 47 N.Y.S.3d 532 [internal quotation marks omitted]; see Richardson v. Marsh, 481 U.S. 200, 206–209, 107 S.Ct. 1702, 95 L.Ed.2d 176 ; People v. Cedeno, 27 N.Y.3d 110, 117–118, 31 N.Y.S.3d 434, 50 N.E.3d 901, cert. denied – –– U.S. ––––, 137 S.Ct. 205, 196 L.Ed.2d 133 ).

Defendant has not established that he was denied effective assistance of counsel. Counsel's failure to preserve all of defendant's legal sufficiency challenges does not constitute ineffective assistance because those challenges would not have been meritorious (see People v. Jackson, 108 A.D.3d 1079, 1080, 968 N.Y.S.2d 789, lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ). Defendant's contention that counsel failed to investigate the DNA evidence introduced at trial involves matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Blocker, 132 A.D.3d 1287, 1287–1288, 17 N.Y.S.3d 227, lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 103, 59 N.E.3d 1215 ; People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803, lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981, cert. denied 565 U.S. 910, 132 S.Ct. 318, 181 L.Ed.2d 196 ). Contrary to defendant's contention, we do not view certain comments made by counsel during cross-examination of the DNA witnesses as proof that counsel was unfamiliar with the subject matter of their testimony. We further conclude that defendant has not demonstrated the absence of a legitimate explanation for counsel's alleged error in failing to move to reopen the suppression hearing when the victim gave testimony at trial tending to establish that the showup identification procedures were unduly suggestive (see People v. Gray, 27 N.Y.3d 78, 83–84, 29 N.Y.S.3d 888, 49 N.E.3d 1180 ; People v. Robles, 116 A.D.3d 1071, 1071, 983 N.Y.S.2d 885, lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 ; People v. Elamin, 82 A.D.3d 1664, 1665, 919 N.Y.S.2d 661, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 ; see generally People v. Carver, 27 N.Y.3d 418, 420–421, 33 N.Y.S.3d 857, 53 N.E.3d 734 ). Even construing counsel's posttrial assertion that he had been "somewhat asleep at the switch" with respect to the possibility of reopening the hearing as an admission that he did not make a conscious decision to forgo the motion, we conclude that his subjective reasoning is immaterial, and that declining to make the motion was consistent with the actions of a reasonably competent attorney (see generally People v. Ambers, 26 N.Y.3d 313, 317–318, 22 N.Y.S.3d 400, 43 N.E.3d...