People v. Santiago

• Decision Date: 09 July 2020
• Docket Number: 110891
• Parties: The PEOPLE of the State of New York, Respondent, v. Anna SANTIAGO, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1151

126 N.Y.S.3d 812

The PEOPLE of the State of New York, Respondent,

v.Anna SANTIAGO, Appellant.

110891

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

Calendar Date: June 12, 2020

Decided and Entered: July 9, 2020

Law Offices of Danielle Neroni, Albany (Angela Kelley of counsel), for appellant.

Michael D. Ferrarese, District Attorney, Norwich (Karen Fisher McGee, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the County Court of Chenango County (Revoir Jr., J.), rendered January 4, 2019, upon a verdict convicting defendant of the crime of arson in the third degree.

In October 2017, defendant was charged by indictment with one count of arson in the third degree based upon allegations that she intentionally damaged her residence by setting a fire therein. The charge was based upon an investigation of the fire from which it was determined that there were three areas of origin on separate floors of the residence, that all accidental and natural causes of the fire could be eliminated and that the fire was intentionally set. Prior to trial, defendant moved in limine to exclude evidence regarding certain handguns owned by defendant that she had removed from her residence prior to the fire and that the People sought to introduce as evidence to establish that defendant had intentionally set the fire. County Court denied the motion, allowing the handguns to be admitted into evidence, and later denied a subsequent motion for a mistrial on the ground of undue prejudice. During the jury trial, the court denied defendant's motion for a mistrial based on a comment by the prosecutor with regard to defendant's right to testify. Defendant was ultimately convicted as charged and thereafter sentenced to a prison term of 1 to 3 years. Defendant appeals.

Initially, several of defendant's arguments are unpreserved for our review due to her failure to properly raise them before County Court. By failing to object to County Court's preliminary jury instructions, defendant has not preserved her contentions that said instructions diminished the People's burden of proof from beyond a reasonable doubt to "sufficient evidence" and infringed on her right to remain silent by including her name among the list of prospective witnesses (see People v. Rice , 172 A.D.3d 1616, 1619, 101 N.Y.S.3d 506 [2019] ). Defendant also failed to preserve her argument regarding expert testimony, "as [s]he made no objections to the charge" after copies thereof were furnished to counsel and defendant specifically indicated that she had no exceptions ( People v. Houze , 177 A.D.3d 1184, 1188, 115 N.Y.S.3d 141 [2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 259, 142 N.E.3d 1161 [2020] ; see People v. Rice , 172 A.D.3d at 1619, 101 N.Y.S.3d 506 ).

Defendant contends that County Court erred in denying her two motions for a mistrial, the first made after the People allegedly improperly commented on her right to testify, and the second made following testimony from Kevin Powell, a detective with the Chenango County Sheriff's Office, that defendant turned five firearms over to him after the fire and his identification of the firearms that were admitted into evidence. "An improper reference ... to [a] defendant's [right] to testify does not necessarily constitute reversible error in every instance. Where the rights of [a] defendant are safeguarded by the charge of the trial court and where the evidence of guilt is overwhelming, the error, if any, is deemed harmless" ( People v. Wolf , 176 A.D.2d 1070, 1071, 575 N.Y.S.2d 726 [1991] [internal quotation marks, brackets and citations omitted], lv denied 79 N.Y.2d 1009, 584 N.Y.S.2d 464, 594 N.E.2d 958 [1992] ).

At trial, during defense counsel's cross-examination of one of the People's witnesses, questions were posed about statements that defendant had made to the witness regarding certain construction work that was planned for defendant's home. The People objected to the questions as calling for hearsay responses. Thereafter, a brief on-the-record exchange between counsel and County Court ensued, after which defense counsel asked the witness another question that elicited a hearsay response. The prosecutor moved to strike the response stating that, "[i]f [defendant] wants to testify, she has the absolute right to do so. She doesn't get –." After the prosecutor's remark, a sidebar was held outside of the presence of the jury. Thereafter, and with counsel's consent, the court gave a curative instruction to the jury explaining that the remarks by counsel challenged the admissibility of the witness's responses under evidentiary rules and instructing the jury that no negative inferences should be drawn against counsel or against defendant. Following a recess, the court gave a second curative instruction that "[defendant] and all defendants are presumed innocent and she like any defendant is not required to present any evidence or any witnesses and most importantly she is not required to testify on her own behalf. The burden of proving guilt beyond a reasonable doubt rests solely with the [People]." In our view, the court's curative instructions eliminated any hint of prejudice that may have inured to defendant following the People's comment and did not deprive defendant of a fair trial (cf. People v. Horton , 173 A.D.3d 1338, 1340–1341, 104 N.Y.S.3d 363 [2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 701, 133 N.E.3d 402 [2019] ; People v. Pitt , 170 A.D.3d 1282, 1285, 95 N.Y.S.3d 459 [2019], lv denied 33 N.Y.3d 1072, 105 N.Y.S.3d 16, 129 N.E.3d 336 [2019] ). Further, any potential harm stemming from the People's remark was further mitigated by the fact that defendant actually testified.

The second motion for a mistrial was made at the close of the People's case-in-chief and was predicated upon the introduction of defendant's handguns into evidence. "Under well-established evidentiary principles, all relevant evidence is admissible unless its admission violates some exclusionary rule. Evidence is relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case. A court, in the exercise of its discretion, may exclude relevant evidence if its probative value is substantially outweighed by the potential for prejudice, trial delay, or the potential to mislead or confuse the jury" ( People v. Hall , 160 A.D.3d 210, 214, 74 N.Y.S.3d 143 [2018] [internal quotation marks, brackets and citations omitted]; see People v. Deverow , 180 A.D.3d 1064, 1065, 118 N.Y.S.3d 677 [2020] ).

Before Powell testified, the jury heard that, at the scene of the fire, defendant told her neighbor that she had removed the handguns from her home. Matthew Sherman, a responding firefighter and member of the Chenango County Bureau of Fire Division of Investigation, testified that his training indicated that the fire was intentionally set based upon its three points of origin and was not the result of accidental or natural causes. He opined that individuals who intentionally set fire to their homes remove "valuables" and "will remove the things that are most ... closest to them ... family pets, or jewelry or any of those things." Contrary to defendant's contention that the handguns were irrelevant to the charge of arson, we find that the jury could infer that defendant removed the handguns before she intentionally set fire to her home. Powell's testimony was therefore relevant and tended to prove the existence of a material fact at issue in the case (see People v. Permaul , 174 A.D.3d 1127, 1129, 105 N.Y.S.3d 214 [2019], lv denied 34 N.Y.3d 983, 113 N.Y.S.3d 670, 137 N.E.3d 40 [2019] ). As County Court "appropriately considered whether the potential value of the evidence was outweighed by the possibility of undue prejudice to ... defendant," the court did not abuse its discretion in denying defendant's second motion for a mistrial ( id. [internal quotation marks, brackets and citations omitted] ).

Defendant also contends that she was deprived of a fair trial based upon pervasive prosecutorial misconduct that consisted of, among other things, improper and prejudicial comments in the presence of the jury, gratuitous objections and legal arguments that denigrated defense counsel, shifting the burden of proof, infringing on defendant's right to remain silent and demonstrating an acrimonious attitude toward the defense. Insofar as defendant failed to raise timely, specific objections to each instance of alleged prosecutorial misconduct, her contentions in this regard are unpreserved (see People v. Horton , 181 A.D.3d 986, 996, 119 N.Y.S.3d 296 [2020] ; People v. Watkins , 180 A.D.3d 1222, 1233, 120 N.Y.S.3d 500 [2020] ; People v. Houze , 177 A.D.3d at 1188, 115 N.Y.S.3d 141 ; People v. Sostre, 172 A.D.3d 1623, 1626–1627, 100 N.Y.S.3d 768 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ).¹ Were these arguments before us, we would find that the challenged comments, made during the course of the trial and during closing arguments, were made in the context of expected trial advocacy or, even if improper, "were not so pervasive or flagrant as to require a reversal" ( People v. Meadows , 183 A.D.3d 1016, 1022, 123 N.Y.S.3d 753 [internal quotation marks and citations omitted]; see People v. Horton , 181 A.D.3d at 996–997, 119 N.Y.S.3d 296 ).

Contrary to defendant's claim, we find that defendant received meaningful representation. "A claimed violation of the constitutional right to the effective...