People v. Richardson

• Decision Date: 20 May 1993
• Citation: 598 N.Y.S.2d 341,193 A.D.2d 969
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael RICHARDSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 341

598 N.Y.S.2d 341

193 A.D.2d 969

The PEOPLE of the State of New York, Respondent, v. Michael RICHARDSON, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 20, 1993.

Jean M. Mahserjian, Albany, for appellant.

Sol Greenberg, Dist. Atty. (John E. Maney, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE and CREW, JJ.

MERCURE, Justice.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered September 27, 1991, upon a verdict convicting defendant of two counts of the crime of burglary in the first degree.

Defendant was convicted after trial of two counts of burglary in the first degree as the result of a December 1, 1990 incident in the Town of Colonie, Albany County, where defendant broke into the residence of his former probation officer and injured her with a knife. Sentenced to concurrent terms of imprisonment of 8 1/3 to 25 years, defendant now appeals.

Initially, we reject the contention that County Court erred in its denial of defendant's motions to dismiss the indictment upon the ground that the Grand Jury proceeding was defective within the meaning of CPL 210.35 (see, CPL 210.20[1][c]. Defendant's first application was predicated upon the claim that he was impermissibly denied an opportunity to appear and testify before the Grand Jury (see, CPL 190.50[5][a]; 210.35[4]. It is undisputed that defendant's case was presented to the Grand Jury on January 15, 1991, that defendant was represented by the Public Defender's office at the time, and that because of defendant's initial desire to testify before the Grand Jury, defendant was transported from the County Jail to the County Courthouse for that purpose. However, a representative of the Public Defender's office spoke with defendant shortly prior to the submission of the matter to the Grand Jury, recommended that defendant not testify, and thereafter advised the Assistant District Attorney that defendant had changed his mind and did not desire to testify.

In support of the motion, defendant submitted the affidavits of his substituted counsel who states, on information and belief, that defendant at all times "vocally assert[ed] his desire to * * * testify"; that the waiver by defendant's former counsel of defendant's right to testify before the Grand Jury was "contrary to defendant's stated desire"; that defendant advised a Deputy Sheriff of his desire to testify before the Grand Jury and that the Deputy Sheriff communicated this fact to the Assistant District Attorney, who nonetheless concluded the Grand Jury proceedings without affording defendant an opportunity to testify. The affiant has no personal knowledge of these events, however, and fails to state the source of her information and belief (see, CPL 210.45[1]. Accordingly, defendant failed to support his motion with sufficient "sworn allegations supporting all the essential facts" (CPL 210.45[5][b]. In view of this infirmity and the hearsay nature of the facts alleged, County Court properly rejected the allegations and denied the motion without a hearing (see, CPL 210.45[5][b]; People v. Rodriguez, 79 A.D.2d 539, 539-540, 433 N.Y.S.2d 584, affd. 55 N.Y.2d 776, 447 N.Y.S.2d 246, 431 N.E.2d 972; People v. Mack, 75 A.D.2d 586, 587, 426 N.Y.S.2d 792, affd. 53 N.Y.2d 803, 439 N.Y.S.2d 912, 422 N.E.2d 572). Regarding the claim of ineffective assistance of counsel in failing to secure defendant's right to testify before the Grand Jury, defendant has failed to demonstrate the necessary absence of strategic or other legitimate explanations for counsel's actions (see, People v. Garcia, 75 N.Y.2d 973, 556 N.Y.S.2d 505, 555 N.E.2d 902).

Defendant's second motion to dismiss the indictment was based upon the contention that the Assistant District Attorney impermissibly permitted the Grand Jury to hear evidence of defendant's prior uncharged crimes and a prior conviction, and that as a result the Grand Jury proceeding failed to conform to the requirements of CPL article 190 "to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35[5]. We concur in County Court's conclusion that the brief references to defendant's prior scuffles with the victim and the origin of their relationship in defendant's sentence of probation were probative of the parties' prior dealings with one another and establish a motive for the attack. As such, the evidence was material to an issue other than propensity to commit the crime (see, People v. Hudy, 73 N.Y.2d 40, 55, 538 N.Y.S.2d 197, 535 N.E.2d 250), and the probative value of the evidence outweighed any unfair prejudice (see, id.).

Defendant next contends that he was denied equal protection as a result of the prosecutor's discriminatory exercise of peremptory challenges (see, Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1722-24, 90 L.Ed.2d 69). Again, we disagree. Although the prosecutor did peremptorily challenge the only three Black prospective jurors, thereby giving rise to an inference of discrimination (see, id.; People v. Hernandez, 75 N.Y.2d 350, 355, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; People v. Scott, 70 N.Y.2d 420, 425-426, 522 N.Y.S.2d 94, 516 N.E.2d 1208), we perceive no basis for setting aside County Court's determination that the prosecution met its resulting burden of coming forward with a neutral explanation (see, Batson v. Kentucky, supra; People v. Bessard, 148 A.D.2d 49, 52, 543 N.Y.S.2d 760, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193).

Specifically, the first of the challenged Black jurors indicated that her husband, a multiple felony offender, was currently confined in a State correctional facility, serving a 5 to 10-year sentence for a 1987 assault. In addition, this prospective juror had a Master's degree, was employed by a social services agency and expressed dissatisfaction with the police investigation of a crime which had been committed against her. The second Black prospective juror had a first cousin who was...