People v. Wilkerson

• Decision Date: 09 June 2016
• Citation: 140 A.D.3d 1297,2016 N.Y. Slip Op. 04465,33 N.Y.S.3d 523
• Parties: The PEOPLE of the State of New York, Respondent, v. Mali WILKERSON, also known as New, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1297

33 N.Y.S.3d 523

2016 N.Y. Slip Op. 04465

The PEOPLE of the State of New York, Respondent,

v.Mali WILKERSON, also known as New, Appellant.

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

June 9, 2016.

Sandra M. Colatosti, Albany, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered May 17, 2013, upon a verdict convicting defendant of the crimes of robbery in the second degree, assault in the second degree, assault in the third degree and endangering the welfare of a child.

Defendant and the victim married in 2007 and have three children in common. On the evening of April 21, 2012, defendant and the victim had a disagreement, prompting the victim to leave their shared residence and spend the night in a local hotel. At some point during the night, defendant ascertained the victim's whereabouts, went to the hotel and retrieved the family vehicle, leaving the victim without transportation. As a result, when the victim awoke on the morning of April 22, 2012, she called her friend, Danielle Schoonmaker, for a ride. Schoonmaker picked up the victim, who was reluctant to return home, and drove her to Schoonmaker's residence. After overhearing a telephone conversation between the victim and defendant, Schoonmaker offered—in an effort to give everyone involved “some time to cool off”—to drive to the home that the victim shared with defendant and pick up their children. When Schoonmaker arrived at the victim's home, defendant's father was present, and he persuaded her to leave the children with him. Schoonmaker then returned to her residence, where she had left her three children—then two, four and 11 years old—with the victim.

In the interim, defendant and his brother arrived at Schoonmaker's home looking for the victim. After defendant and his brother entered the residence without knocking, defendant's brother turned up the volume on the television and told Schoonmaker's three children, who were sitting in the living room, not to go into the bathroom. Defendant then proceeded to the bathroom, where he found the victim sitting on the toilet. Defendant struck the victim's face with his fist, knocking her off of the toilet and into the tub; as the victim fell, she grabbed the shower curtain—pulling it down and breaking the shower curtain rod into two pieces. According to the victim, she and defendant each grabbed a portion of the shower rod and began striking one another.¹ This altercation continued until defendant's brother intervened and helped the victim out of the tub. The victim then walked outside and defendant soon followed, carrying the victim's belongings—including her purse. When the victim attempted to retrieve her purse, defendant “smashed it back” and struck the victim in the head with the purse, resulting in two lacerations that eventually required stapling in order to close the wounds

. Schoonmaker arrived in time to witness this portion of the assault and testified that defendant hit the victim “once or twice” while he “was trying to get the purse.” Defendant and his brother then left the premises with the victim's purse and cell phone.

As a result of this incident, defendant was indicted and charged with burglary in the first degree, robbery in the second degree, assault in the second degree, assault in the third degree and endangering the welfare of a child. The matter proceeded to trial and, at the close of the People's proof, County Court dismissed the burglary count. The remaining counts, along with the lesser included offense of robbery in the third degree, were submitted to the jury, and the jury thereafter convicted defendant as charged.² Defendant's subsequent motion to set aside the verdict was denied, and County Court thereafter sentenced defendant, as a second felony offender, to an aggregate prison term of five years followed by five years of postrelease supervision. This appeal by defendant ensued.³

We affirm. Initially, we reject defendant's assertion that he was deprived of his right to testify before the grand jury. Where, as here, “a defendant ... has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding[,] ... the district attorney must notify the defendant or his [or her] attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his [or her] right to appear as a witness therein” (CPL 190.50[5] [a]

; see

People v. Lanier, 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ; People v. Ellison, 119 A.D.3d 602, 604, 988 N.Y.S.2d 691 [2014] ; People v. Lyons, 40 A.D.3d 1121, 1121, 837 N.Y.S.2d 706 [2007], lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ). A defendant, in turn, “has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment ..., he [or she] serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent” (CPL 190.50[5][a] ; see

People v. Sain, 111 A.D.3d 964, 965, 976 N.Y.S.2d 107 [2013], lv. denied 23 N.Y.3d 967, 988 N.Y.S.2d 575, 11 N.E.3d 725 [2014] ; People v. Kirk, 96 A.D.3d 1354, 1358–1359, 945 N.Y.S.2d 818 [2012], lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] ).

The record reflects that defendant was arraigned on a felony complaint in Niskayuna Town Court on April 25, 2012. An audio recording of that proceeding reveals that defendant had completed an application for assigned counsel, and the court advised defendant that, if he qualified, the Schenectady County Conflict Defender's Office would be assigned to represent him. Prior to the conclusion of that proceeding, the People served defendant with notice that the matter was scheduled to be presented to a grand jury on April 27, 2012 at 1:00 p.m. The People also indicated that such notice would be sent to the Conflict Defender's Office the following morning, as well as to a specific attorney therein, and the record contains an email—sent at 10:51 a.m. on April 26, 2012—confirming receipt (via fax) of the CPL 190.50

notice by the Conflict Defender's Office. According to the People, defendant was indicted the following day—April 27, 2012.

There is no question that defendant was served with notice of presentment to the grand jury on April 25, 2012 and that the Conflict Defender's Office, which presumptively was assigned to represent defendant, received such notice the following morning—more than 24 hours before the scheduled presentation of the matter to the grand jury on April 27, 2012 at 1:00 p.m. There also is no question that the People never received written notice of defendant's intention to testify before the grand jury as required by CPL 190.50(5)(a)

. To the extent that defendant now contends that he orally advised Town Court of his desire to testify before the grand jury, two points are worth noting. First, unless the People have waived the statutory written notice requirement (see

People v. Young, 138 A.D.2d 764, 765, 526 N.Y.S.2d 577 [1988], lv. denied 72 N.Y.2d 868, 532 N.Y.S.2d 518, 528 N.E.2d 909 [1988] ), oral notice of a defendant's desire to testify is insufficient (see

People v. Colantonio, 277 A.D.2d 498, 499, 715 N.Y.S.2d 764 [2000], lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ; People v. Hunter, 169 A.D.2d 538, 538, 564 N.Y.S.2d 391 [1991], lvs. denied 77 N.Y.2d 907, 569 N.Y.S.2d 939, 572 N.E.2d 622 [1991] ) in all but the rarest of circumstances (see

People v. Gini, 72 A.D.2d 752, 753, 421 N.Y.S.2d 269 [1979] ). No extenuating circumstances exist here, and nothing in the record suggests that the People waived the statutory written notice requirement. Further, the audio recording of the proceeding in Town Court fails to substantiate defendant's claim that he gave oral notice of his desire to appear before the grand jury. Hence, upon reviewing the record, we are satisfied that the People provided reasonable notice to both defendant and the Conflict Defender's Office—following which defendant failed to timely notify the People in writing of his intention to appear before the grand jury (see

People v. Tole, 94 A.D.3d 1334, 1335, 942 N.Y.S.2d 295 [2012], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; People v. Hernandez, 42 A.D.3d 657, 662, 839 N.Y.S.2d 592 [2007] ; compare

People v. Ellison, 119 A.D.3d at 604, 988 N.Y.S.2d 691 ).

Defendant's related claim—that he was not afforded sufficient time to confer with counsel in this regard—also is lacking in merit. Both defendant and the Conflict Defender's Office were on notice of the impending grand jury presentation, and the fact that counsel and defendant were unable to confer prior to the grand jury returning an indictment neither rendered the People's notice unreasonable (compare People v. Tole, 94 A.D.3d at 1334–1335, 942 N.Y.S.2d 295

and

People v. Ballard, 13 A.D.3d 670, 671, 785 N.Y.S.2d 608 [2004], lv. denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005], with

People v. Chappelle, 121 A.D.3d 1166, 1167–1168, 994 N.Y.S.2d 435 [2014], lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ) nor amounted to the denial of the effective assistance of counsel (cf.

People v. Sain, 111 A.D.3d at 965, 976 N.Y.S.2d 107 ). Accordingly, County Court properly denied defendant's motion to dismiss the indictment.

Defendant next contends that his convictions are not supported by legally sufficient evidence and, further, are against the weight of the evidence. Although defendant's legal sufficiency argument is preserved...