People v. Weaver

• Citation: 167 A.D.3d 1238,90 N.Y.S.3d 359
• Decision Date: 20 December 2018
• Docket Number: 108909
• Parties: The PEOPLE of the State of New York, Respondent v. Jaushi‘ir WEAVER, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1238
90 N.Y.S.3d 359

The PEOPLE of the State of New York, Respondent
v.
Jaushi‘ir WEAVER, Appellant.

108909

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

Calendar Date: October 18, 2018
Decided and Entered: December 20, 2018

90 N.Y.S.3d 361

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

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Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered

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May 31, 2016, upon a

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verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

During the early morning hours of May 5, 2015, defendant, then age 16, and codefendant Mark Bowman shot into a crowd of people gathered outside of a residential building in the City of Albany in an effort to avenge the murder of Bowman's cousin. Two of the individuals present in the group were struck and injured, and a third victim was fatally wounded by a bullet forensically determined to have been fired from the gun found upon defendant when he was apprehended by police just minutes later. Defendant and Bowman, along with their get-away driver, were thereafter arrested and charged by indictment with various crimes in connection with the shooting. Following a joint Huntley hearing, County Court denied defendant's motion to suppress the statements he made to police and severed his case from that of his codefendants. At the ensuing jury trial, defendant raised the affirmative defense of duress and testified in his own defense. Defendant admitted that he repeatedly fired the gun in the direction of where the group of people were gathered, but claimed that Bowman had directed him to do so and threatened to shoot him and his family if he did not do as he was told. The jury rejected the duress defense and convicted defendant of murder in the second degree and criminal possession of a weapon in the second degree. Sentenced to 22 years to life in prison for the murder conviction and a concurrent 15–year prison term for the weapon conviction, defendant now appeals.

Defendant first alleges the existence of unspecified defects in the grand jury proceeding. As the sufficiency of the trial evidence has not been challenged, it is presumed legally sufficient and, as a result, any "challenges to the grand jury proceeding are precluded to the extent they involve the sufficiency of the evidence presented or the instructions given to the grand jury" ( People v. Secor, 162 A.D.3d 1411, 1413, 80 N.Y.S.3d 511 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ; see People v. Smith, 4 N.Y.3d 806, 808, 796 N.Y.S.2d 1, 828 N.E.2d 958 [2005] ; People v. Roulhac, 166 A.D.3d 1066, 86 N.Y.S.3d 336, 338 [2018] ; People v. Robinson, 156 A.D.3d 1123, 1128 n. 8, 67 N.Y.S.3d 709 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). Our review of the grand jury minutes otherwise fails to reveal the existence of any defects that impaired the integrity of the grand jury or prejudiced defendant so as to warrant the drastic remedy of dismissal of the indictment (see People v. Wisdom, 23 N.Y.3d 970, 972, 989 N.Y.S.2d 678, 12 N.E.3d 1107 [2014] ; People v. Secor, 162 A.D.3d at 1413, 80 N.Y.S.3d 511 ; People v. Fields, 160 A.D.3d 1116, 1118 n. 1, 75 N.Y.S.3d 617 [2018], lvs denied 31 N.Y.3d 1116, 1120, 81 N.Y.S.3d 376, 379, 106 N.E.3d 759, 762 [2018] ).

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Defendant next claims that County Court erred in denying his application, made on the eve of trial, for funds to hire a psychological expert to examine him and testify relative to his duress defense. To succeed on a motion for funds pursuant to County Law § 722–c, it was incumbent upon defendant "to show that he was indigent, that the service was necessary to his defense and, if the compensation he sought exceeded the statutory limit of $1,000, that extraordinary circumstances justified the expenditure" ( People v. Clarke, 110 A.D.3d 1341, 1342, 975 N.Y.S.2d 194 [2013], lv denied 22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 [2014] ; see People v. Brand, 13 A.D.3d 820, 821, 787 N.Y.S.2d 169 [2004], lv de nied

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4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ). Here, defendant's application sought funds for the purpose of securing expert testimony to explain why he "would succumb to the pressure of an older, more dominant male in his peer group." Although such testimony may well have been helpful to defendant's duress defense, he failed to demonstrate a "distinct necessity" for the assistance of an expert to aid the jury in resolving that issue ( People v. Dove, 287 A.D.2d 806, 807, 731 N.Y.S.2d 769 [2001] ; accord People v. Clarke, 110 A.D.3d at 1342, 975 N.Y.S.2d 194 ; see People v. Casiano, 40 A.D.3d 528, 529, 837 N.Y.S.2d 76 [2007], lv denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023 [2007] ; People v. Gallow, 171 A.D.2d 1061, 1062–1063, 569 N.Y.S.2d 530 [1991], lv denied 77 N.Y.2d 995, 571 N.Y.S.2d 920, 575 N.E.2d 406 [1991] ; People v. Wright, 161 A.D.2d 743, 743, 558 N.Y.S.2d 842 [1990] ; cf. People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983] ). Moreover, defendant was able to present his duress defense through his own trial testimony and to expound upon it through his cross-examination of witnesses and closing arguments to the jury (see People v. Gallow, 171 A.D.2d at 1062–1063, 569 N.Y.S.2d 530 ; compare People v. Rodriguez, 6 A.D.3d 814, 817–818, 776 N.Y.S.2d 105 [2004] ). We further note that "the application made no claim or showing of extraordinary circumstances, nor did it indicate whether the compensation sought would exceed $1,000 or detail the time to be spent" by the expert ( People v. Clarke, 110 A.D.3d at 1342, 975 N.Y.S.2d 194 ; see People v. Dearstyne, 305 A.D.2d 850, 852–853, 761 N.Y.S.2d 118 [2003], lv denied 100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 [2003] ; People v. Dove, 287 A.D.2d at 807, 731 N.Y.S.2d 769 ). In light of the foregoing, we cannot say that County Court abused its discretion in denying defendant's application.

We are similarly unconvinced that County Court erred in refusing to suppress certain statements that defendant made to police during his recorded interrogation. Defendant does not dispute that he validly waived his Miranda rights at the outset of the interview, but contends that his waiver was rendered ineffective by subsequent police conduct during the course of the interrogation. Having failed to raise this specific argument in his motion papers or at the Huntley hearing as a ground for suppression, defendant did not preserve the issue for our review (see People v. Schluter, 136 A.D.3d 1363, 1363, 24 N.Y.S.3d 478 [2016], lv

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denied 27 N.Y.3d 1138, 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016]; People v. Johnson, 117 A.D.3d 637, 638, 987 N.Y.S.2d 312 [2014], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). In any event, the Court of Appeals has rejected the "novel theory" now advanced by defendant – that is, "that the validity of the [Miranda ] waiver [could be] vitiated by police misconduct that occurred after the waiver" ( Matter of Jimmy D., 15 N.Y.3d 417, 424, 912 N.Y.S.2d 537, 938 N.E.2d 970 [2010] ). Where, as here, a defendant's "Miranda rights were validly waived and never reinvoked, the issue is voluntariness, not waiver" ( id. ).¹

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Whether defendant's statements were voluntary – an issue that was properly preserved – is to be determined "by examining the totality of the circumstances under which [they were] obtained" ( People v. Moore, 162 A.D.3d 1123, 1126, 78 N.Y.S.3d 486 [2018] ; see Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 [2000] ; People v. Guilford, 21 N.Y.3d 205, 208, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013] ). Upon our review of the recorded interview and the testimony adduced at the Huntley hearing, we conclude that the People satisfied their burden of demonstrating the voluntariness of defendant's statements beyond a reasonable doubt (see People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ; People v. Cummings, 157 A.D.3d 982, 985, 69 N.Y.S.3d 394 [2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ).

The circumstances and atmosphere of the interview fail to demonstrate involuntariness. Although defendant was detained for approximately 16½ hours, that fact, without more, does not render his statements involuntary (see People v. Jin Cheng Lin, 26 N.Y.3d 701, 723–725, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016] ; People v. Tarsia, 50 N.Y.2d 1, 12–13, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ; People v. Case, 150 A.D.3d 1634, 1638, 54 N.Y.S.3d 475 [2017] ; People v. McWilliams, 48 A.D.3d 1266, 1267, 852...