People v. White

• Decision Date: 23 December 2010
• Citation: 79 A.D.3d 1460,913 N.Y.S.2d 818
• Parties: The PEOPLE of the State of New York, Respondent, v. Antwon WHITE, Also Known as Ant, Also Known as Ant Man, Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 818
79 A.D.3d 1460

The PEOPLE of the State of New York, Respondent,
v.
Antwon WHITE, Also Known as Ant, Also Known as Ant Man, Appellant.

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

Dec. 23, 2010.

913 N.Y.S.2d 820

Cheryl Coleman, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: CARDONA, P.J., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.

CARDONA, P.J.

79 A.D.3d 1460

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered September 25, 2007, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and reckless endangerment in the first degree.

In the early morning hours of May 26, 2006, defendant and Jamil Jordan were driving in the City of Schenectady, Schenectady County, when they stopped to talk to a female acquaintance

79 A.D.3d 1461

of Jordan. A male exiting a nearby party stopped to ask where defendant and Jordan were from

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and, upon being informed that they were from the City of Albany, the man shouted that information to the crowd also leaving the party in an apparent attempt to cause a confrontation. Jordan, the passenger, exited the car and started to fight with the man who had called out to the crowd. At some point thereafter, defendant exited the car and brandished an unlicensed handgun. Defendant fired the handgun,¹ allegedly striking the victim-a bystander-in the head, causing permanent brain damage and leaving the victim in an apparently irreversible persistent vegetative state.

Defendant was charged with attempted murder in the second degree, two counts of assault in the first degree (one alleging intentional conduct, the other alleging reckless conduct under circumstances evincing a depraved indifference to human life), assault in the second degree, criminal possession of a weapon in the second and third degrees and reckless endangerment in the first degree. After a jury trial, defendant was acquitted of the charges of attempted murder and intentional assault in the first degree, but convicted of the remaining five counts. He was sentenced to an aggregate prison term of 25 years, to be followed by five years of postrelease supervision.

Initially, we are unpersuaded by defendant's contention that County Court (Drago, J.) erred in precluding him from calling at the Wade hearing the sole witness who identified him from a photo array, as well as certain other witnesses who failed to identify him after reviewing that same array. According to defendant, those witnesses should have been called so that he could explore whether the non-identifying witnesses somehow influenced the identifying witness because of a prior acquaintanceship. Notably, defendant does not assert herein that the photo array was unduly suggestive. Thus, the court's determination was a discretionary one ( see e.g. People v. Chipp, 75 N.Y.2d 327, 339, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]; People v. Skinner, 220 A.D.2d 806, 807-808, 632 N.Y.S.2d 283 [1995], lv. denied 87 N.Y.2d 1025, 644 N.Y.S.2d 159, 666 N.E.2d 1073 [1996] ). Given that defendant's stated reasons for calling the witnesses were premised on speculation, we find no abuse of discretion in the denial of his request ( see People v. Taylor, 80 N.Y.2d 1, 15, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992]; People v. Skinner, 220 A.D.2d at 808, 632 N.Y.S.2d 283). Further,

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we conclude that County Court (Giardino, J.) did not err in declining defendant's later request to reopen the hearing for that purpose.

Next, defendant contends that County Court improperly denied his trial motion to dismiss the first two counts of the indictment alleging intentional conduct, i.e., attempted murder in the second degree and intentional assault in the first degree. However, inasmuch as defendant was acquitted of both counts by the jury, this issue is moot ( see People v. Brown, 83 N.Y.2d 791, 794, 610 N.Y.S.2d 956, 632 N.E.2d 1279 [1994]; People v. Scott, 283 A.D.2d 1006, 1006, 725 N.Y.S.2d 586 [2001], lv. denied 96 N.Y.2d 907, 730 N.Y.S.2d 805, 756 N.E.2d 93 [2001] ). As for defendant's argument that, regardless of the acquittal, he was nevertheless prejudiced as a result of trial evidence submitted in support of those counts that negatively

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impacted the jury, we note that this claim "rests on unsupported speculation as to the jury's thought processes" ( People v. Reynoso, 262 A.D.2d 102, 103, 693 N.Y.S.2d 521 [1999], lv. denied 93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945 [1999] ).

Citing four examples, defendant next claims that various trial errors by County Court were, alone or cumulatively, sufficient to require a new trial. Defendant first maintains that his motion for a mistrial should have been granted after the court permitted the victim's family to bring the victim into the courtroom during the proceedings.² Whether the victim, who was not a potential fact witness ( see generally People v. Santana, 80 N.Y.2d 92, 100, 587 N.Y.S.2d 570, 600 N.E.2d 201 [1992] ), could be seated with the spectators was a discretionary determination of the court. Notably, the court was mindful of the defense's concerns and warned the victim's family that his presence was permissible as long as there were no disruptions.³ Further, defendant declined the court's offer to instruct the jury that it was not to...