People v. Taylor

• Decision Date: 24 March 2017
• Docket Number: 229 KA 11-01294.
• Citation: 50 N.Y.S.3d 217,148 A.D.3d 1607
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen D. TAYLOR, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1607

50 N.Y.S.3d 217

The PEOPLE of the State of New York, Respondent,

v.Stephen D. TAYLOR, Defendant–Appellant. (Appeal No. 1.).

229 KA 11-01294.

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

March 24, 2017.

Bridget L. Field, Rochester, for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, AND SCUDDER, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ) and one count of criminal possession of a weapon in the third degree (§ 265.02[1] ). In appeal No. 2, defendant appeals from an order denying his motion pursuant to CPL 440.10 seeking to vacate the judgment in appeal No. 1.

Defendant failed to preserve for our review his contention in appeal No. 1 that the evidence is legally insufficient to support his conviction of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) because he failed to renew his motion for a trial order of dismissal after presenting evidence in his defense (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). In any event, we reject that contention. Viewing the evidence in the light most favorable to the People (see People 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 support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). An eyewitness testified that defendant had a gun when he was at her residence, where it was ultimately recovered by police, and the recording of her 911 call, reporting that defendant was waving the gun and threatening her nephew as the incident was happening, was admitted in evidence. Furthermore, one of the police witnesses testified that he saw defendant holding what appeared to be a gun before he entered the residence. We further conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The jury was free to credit the testimony of the People's witnesses, rather than defendant's testimony, and we perceive no reason to reject those credibility determinations (see generally id. ).

We reject defendant's further contention in appeal No. 1 that County Court erred in permitting the People to offer Molineux evidence from a police witness that, approximately three months prior to this incident, while conducting surveillance, he heard defendant say to another individual "Don't f* * * with me; you know, I'll use my pistol." We conclude that the evidence was relevant with respect to the element of intent (see People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ), inasmuch as the weapon that was recovered was a .32 caliber automatic "Pistole," a type of handgun. Further, the court properly weighed the probative value of the evidence against the prejudicial impact by limiting the testimony to that statement (see People v. Rivers, 82 A.D.3d 1623, 1623, 918 N.Y.S.2d 921, lv. denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 ), and the court minimized the potential prejudice by providing a curative instruction (see People v. Holmes, 104 A.D.3d 1288, 1289, 960 N.Y.S.2d 831, lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 ). In any event, any error in permitting the testimony is harmless. The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted if that evidence had been excluded (see People v. Casado, 99 A.D.3d 1208, 1211–1212, 951 N.Y.S.2d 797, lv. denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his challenge in appeal No. 1 to that ruling (see People v. Reyes, 144 A.D.3d 1683, 1685, 42 N.Y.S.3d 704 ). In any event, that contention lacks merit because " ‘[t]he court's Sandoval compromise ... reflects a proper exercise of the court's discretion’ " (People v. Monk, 57 A.D.3d 1497, 1499, 871 N.Y.S.2d 514, lv. denied 12 N.Y.3d 785, 879 N.Y.S.2d 62, 906 N.E.2d 1096 ). We reject defendant's further contention in appeal No. 1 that the court abused its discretion in denying his request for new counsel on the eve of trial inasmuch as defendant failed to show good cause for the request (see People v. Farmer, 132 A.D.3d 1238, 1238–1239, 16 N.Y.S.3d 877, lv. denied 27 N.Y.3d 1068, 38 N.Y.S.3d 839, 60 N.E.3d 1205 ; see generally People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ). Finally, with respect to appeal No. 1, the sentence is not unduly harsh or severe.

With respect to appeal No. 2, we conclude that the court did not err in denying defendant's motion seeking to vacate the judgment either on the ground that there was an alleged Brady violation or on the ground that he was denied effective assistance of counsel. Both grounds for defendant's motion are based upon an alleged conflict of interest related to a prosecution witness. Defendant contends that the People violated their Brady obligation by failing to provide information regarding convictions that a witness had...