| People v Williams |
| 2008 NY Slip Op 04236 [51 AD3d 1141] |
| May 8, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CraigWilliams, Also Known as Gutter, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Kurt A. Kafferlin, Law Intern), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schenectady County(Giardiano, J.), rendered April 17, 2007, convicting defendant following a nonjury trial of thecrimes of perjury in the first degree (six counts) and perjury in the third degree.
On the evening of September 30, 2003, Unishon Mollette was mortally wounded by agunshot as she sat in the rear seat of an automobile owned by defendant. The automobile waslater found by the police in an abandoned lot in the City of Schenectady, Schenectady County andsubsequently traced to defendant. In May 2004, after executing a waiver of immunity, defendanttestified under oath before a grand jury investigating the circumstances surrounding Mollette'sdeath. Because of his apparent attempt to conceal the vehicle after the homicide, defendant wascharged by indictment with tampering with physical evidence, but was ultimately acquitted ofthat charge. Two years later, in May 2006, another grand jury charged defendant by indictmentwith 13 counts of perjury in the first degree in regard to the sworn testimony that he gave beforethe grand jury as to his knowledge of the circumstances surrounding the shooting and his actionsupon fleeing the scene.
After a nonjury trial, defendant was convicted of six counts of perjury in the first degree[*2]and one count of perjury in the third degree. He wassubsequently sentenced as a second felony offender to 3½ to 7 years in prison for each ofthe six counts of perjury in the first degree[FN1]and for time served on his conviction for perjury in the third degree. Defendant appeals andargues that the convictions for perjury in the first degree as set forth in counts 6, 7, 10 and 11 ofthe indictment are not supported by legally sufficient evidence and the consecutive sentences asimposed were improper.
Defendant contends that the testimony claimed to be false as set forth in counts 6, 7, 10 and11 of the indictment were not material to the charge that the grand jury ultimately filed againsthim—tampering with physical evidence—and therefore cannot support hisconviction on each count for perjury in the first degree. He specifically contends that since thissworn testimony did not specifically relate to the allegation that he attempted to improperlydispose of physical evidence involved in a crime, it was not relevant or material to the focus ofthe grand jury's inquiry and, thus, even if it was false, it could not serve as a basis for hisconviction of perjury in the first degree. Defendant further claims that if materiality is lacking,any conviction for perjury in the first degree must be reduced to perjury in the third degree andthe sentence imposed for each perjury in the third degree conviction must be time served.
A person is guilty of perjury in the first degree "when he [or she] swears falsely and when his[or her] false statement (a) consists of testimony, and (b) is material to the action, proceeding ormatter in which it is made" (Penal Law § 210.15). False testimony is considered material ifit " 'has the natural effect or tendency to impede, influence or dissuade the grand jury frompursuing its investigation' " (People v Davis, 53 NY2d 164, 171 [1981], quotingUnited States v Stone, 429 F2d 138, 140 [2nd Cir 1970]). Moreover, whether thetestimony, as given, is material is a question to be decided by the trier of fact (see People vStanard, 42 NY2d 74, 80 [1977], cert denied 434 US 986 [1977]).
Initially, it must be noted that the grand jury that took testimony from defendant wasinvestigating not only defendant's activities on the night of Mollette's death, but also thecircumstances of her being mortally wounded as she sat in the back seat of his automobile. Thefact that it ultimately decided to charge defendant with attempting to conceal certain physicalevidence that was relevant to the grand jury's investigation of that homicide did not serve todefine the permissible parameters of that investigation or limit the grand jury's power to chargeother offenses committed in connection with that homicide (see CPL 190.65 [2];People v Lancaster, 69 NY2d 20, 25 [1986], cert denied 480 US 922 [1987]). Thequestioning of defendant during that proceeding focused on the grand jury's efforts to developevidence that would identify the person or persons responsible for Mollette's death and anyquestions that sought to address that issue were clearly relevant and material to that inquiry(see People v Davis, 53 NY2d at 170-171; People v Stanard, 42 NY2d at 80;see also Wood v People, 59 NY 117, 123 [1874]).
We also note that defendant, in the presence of counsel, executed a waiver of immunityagreeing to waive his right against self-incrimination during his appearance before the grand jury[*3]as well as "any possible or prospective immunity to which hewould otherwise become entitled" (CPL 190.45 [1]). The record does not reflect the existence ofany limitations being placed on that waiver of immunity (see CPL 190.45 [4]), anddefendant was specifically instructed at the outset of his appearance before the grand jury that itwas investigating charges which arose "out of an incident that occurred on September 30, 2003 inthe City of Schenectady." Moreover, at trial, the Chief Assistant District Attorney who presenteddefendant's case to the grand jury testified that "the real gravamen of the [g]rand [j]uryproceeding was to try to get to the heart of the Mollette homicide." He further stated that haddefendant testified truthfully, it would have allowed the grand jury to broaden the scope of itsinquiry into the Mollette homicide and identify those responsible for her death.
Defendant testified that he was sitting with Mollette in his automobile parked on StanleyStreet in Schenectady when he heard a number of gunshots. He immediately drove from thescene and only when he was about a block away did he realize that Mollette, who had been in theback seat, was wounded. As he exited his vehicle to check on her condition, two individuals heknew from school, but could not identify, came upon them, apparently running from the scene ofthe shooting; they got into his car and the three men then drove Mollette to a hospital. Because hefeared that the individuals who were in his car might steal it, defendant testified that he left thehospital without identifying either himself or Mollette.[FN2]He also testified that after the car became disabled, he left it parked on a city street and wenthome.
Other evidence presented at trial paints a very different picture of the nature of defendant'sactivities that evening and strongly supports the conclusion embodied by the verdict thatdefendant knew not only who it was who perpetrated the shooting, but also the identities of otherindividuals who had witnessed it. Specifically, testimony from other witnesses at trial establishedthat the victim was with defendant in his automobile on Stanley Street when defendant met withan individual named William Farrow.[FN3]As Farrow and defendant stood outside defendant's car, Farrow saw Kenneth Portee approachthem on foot, holding a handgun aimed at defendant. When Portee began firing the rounds fromthe weapon, both defendant and Farrow fled on foot. As they were about a block away from theshooting, defendant and Farrow were met by a third person, subsequently identified as ShamahEllis, who had entered defendant's automobile and was now driving. When Farrow entered theback seat of the vehicle, he saw that the victim had been shot, was bleeding and was havingdifficulty breathing. The three men drove to the hospital where they left the victim withoutdisclosing her identity or their own to hospital personnel. They later abandoned the vehicle in avacant lot in Schenectady.
This evidence provided the basis for the claim that defendant had perjured himself when hetestified before the grand jury "that he did not see the person who fired the gunshots. . . and who shot at defendant and his Honda and fatally wounded . . .Mollette" (count 7), "about the [*4]identities of the two malefriends who rode to the hospital . . . with defendant and the mortally-wounded. . . Mollette" (count 10), "denied seeing anyone he knew . . . at thetime of the shooting, denied arranging for his male friend to meet him there, denied talking withthis friend . . . denied seeing this friend at all until after defendant had left the block[and] denied knowing this friend's name" (count 6) and "about his reason for leaving [thehospital] immediately after dropping off the mortally-wounded . . . Mollette andbefore the police could arrive . . . [t]hat he left in such haste solely because one ormore of his passengers demanded it and threatened to steal his car" (count 11). Given the contentof this testimony and the relevance it bore to the grand jury's investigation into the circumstancessurrounding the death of Mollette, we find that it was, in all respects, material to that inquiry andprovided a legally sufficient basis for defendant's convictions for the crime of perjury in the firstdegree under these counts (see People vTaylor, 44 AD3d 1159, 1162 [2007], lv denied 9 NY3d 1039 [2008]).
Next, defendant argues that the consecutive sentences imposed by County Court wereimproper, harsh, excessive and an abuse of discretion. We disagree. Initially, defendant contendsthat concurrent, as opposed to consecutive, sentences must be imposed when the sentence is "fortwo or more offenses committed through a single act or omission, or through an act or omissionwhich in itself constituted one of the offenses" (Penal Law § 70.25 [2]). However,consecutive sentences may be imposed if the acts involved, though part of a continuous course ofconduct, can be separated into separate and "distinct events" (Matter of Di Lorenzo vMurtagh, 36 NY2d 306, 310 [1975]; see People v Brown, 66 AD2d 223, 226[1979]). Applying this standard to testimony given by a witness during an appearance before agrand jury, if the testimony involves a distinct and "discrete subject[ ]" matter, it may constituteseparate and distinct acts of perjury for which consecutive sentences may be imposed (Matterof Di Lorenzo v Murtagh, 36 NY2d at 312). Here, while defendant's testimony focused on asingle event—the death of Mollette—the perjury convictions which resulted in theimposition of consecutive sentences involved three discrete and distinct aspects of that event anddefendant's participation in it. The questions posed to him, which the grand jury found to beperjurious, concerned the whereabouts and identification of an eyewitness to the shooting (count6), defendant's knowledge of the identity of the perpetrator of the shooting (count 7) and theidentity of those individuals who were with defendant when the victim was transported to thehospital (count 10). Accordingly, the consecutive sentences imposed on these counts were notviolative of Penal Law § 70.25 (2).
Finally, we disagree that the prison terms imposed—an aggregate term of 10½ to21 years—was, under all of the circumstances, harsh, excessive, or an abuse of discretion.Defendant's failure to testify truthfully as to what he knew at the time of the shooting and, inparticular, his refusal to identify the individual responsible, not only impeded the investigationand subsequent prosecution, but also had an agonizing effect on the victim's family.[FN4]His callous disregard for the victim's well-being as she lay wounded in the back seat of hiscar[FN5]and his [*5]obvious reluctance to get her medical help, coupledwith the fact that he has a prior criminal record that includes a felony conviction, provides amplejustification for the sentence that was imposed.
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The sentences for counts 11, 12and 13 run concurrently to each other. The sentences for counts 6, 7 and 10 run consecutively toeach other and concurrently with the terms for counts 11, 12 and 13.
Footnote 2: The only item found inMollette's possession by the medical authorities at the hospital was a cell phone which policewere able to use to ultimately identify her.
Footnote 3: In the presentence report,defendant stated, "The whole purpose of this case was me going to buy drugs."
Footnote 4: On December 11, 2006, Porteewas sentenced to a prison sentence of 50 years to life for his conviction for manslaughter in thesecond degree and other crimes he committed in connection with the death of Mollette.
Footnote 5: Evidence presented at trialalleged that defendant, when told that the victim would be taken to the hospital so she couldreceive medical care, stated "[k]ick the bitch out of the car."