| People v Booker |
| 2008 NY Slip Op 05984 [53 AD3d 697] |
| July 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lance Booker,Also Known as Ninja, Appellant. |
—[*1] Ann C. Sullivan, Special Prosecutor, New York Prosecutors Training Institute, Albany, forrespondent.
Peters, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.),rendered January 6, 2005, upon a verdict convicting defendant of the crime of murder in the firstdegree (two counts) and conspiracy in the second degree.
In December 2003, Michael Hoffler allegedly arranged for the murder of the victim, a confidentialinformant for the City of Albany Police Department who had engaged in two controlled buys withHoffler in May 2003, in order to prevent the victim from testifying at Hoffler's January 2004 drug trial.Defendant allegedly assisted Hoffler and Gregory Heckstall in that effort.
Following the fatal shooting of the victim on December 30, 2003, one week prior to thecommencement of Hoffler's drug trial, defendant, Hoffler and Heckstall were arrested and charged withthe victim's murder. At the conclusion of the ensuing jury trial, defendant was convicted, as anaccomplice, of murder in the first degree (two counts) and conspiracy in the [*2]second degree.[FN1]County Court sentenced defendant to two concurrent terms of life imprisonment without the possibilityof parole upon his murder convictions and a concurrent prison term of 8
Defendant first argues that County Court erred by denying his motion to suppress the four writtenstatements he made to police because his right to counsel had attached at the time the statements weremade and a valid waiver of this right was never effectuated. New York's right to counsel attaches"where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody,has requested a lawyer in that matter" (People v West, 81 NY2d 370, 373-374 [1993];see People v Grice, 100 NY2d 318, 321 [2003]).
With regard to the first written statement, County Court properly determined that, althoughdefendant's right to counsel had attached when his attorney provided him legal advice over thetelephone and informed the police of his representation of defendant (see People v Davis, 75NY2d 517, 522 [1990]; People v Ellis, 58 NY2d 748, 750 [1982]), defendant thereaftermade a knowing, voluntary and intelligent waiver of that right prior to the noncustodial policequestioning. The testimony at the Huntley hearing established that, on January 7, 2004, thepolice wanted to speak with defendant, who was staying in the City of Newburgh, Orange County.While a number of detectives were en route to Newburgh, other police personnel went to the residenceof defendant's paramour, Pamela White, in order to execute a search warrant. Shortly after their arrival,Tubosun Osofisan, an attorney who claimed to represent both defendant and White, arrived and hadseveral extended telephone conversations with defendant, during which Osofisan advised defendant notto speak with police. At this point, Osofisan "entered the proceeding" and defendant's right to counseltherefore attached (People v Robles, 72 NY2d 689, 696 [1988]; see People vHobson, 39 NY2d 479, 483 [1976]). Defendant, however, rejected Osofisan's advice, informingOsofisan that he wanted to speak with the police and that he had "nothing to worry about." Osofisaninformed the police that defendant agreed to speak with them in his absence so long as he was notifiedif the police intended to arrest defendant, and this information was relayed to the detectives before theyreached Newburgh to speak with defendant. Because the physical presence of an attorney is notrequired for a suspect to effectuate a valid waiver of the right to counsel where, as here, the police areassured by the attorney that the decision to waive counsel was made in consultation with the attorney(see People v Beam, 57 NY2d 241, 254 [1982]; People v Yut Wai Tom, 53 NY2d44, 53-54 [1981]; People v Brown, 244 AD2d 347, 348 [1997], lv denied 91 NY2d940 [1998]), and since "[s]uch an assurance by the attorney who consulted with defendant is just asvalid when made over the telephone" (People v Beam, 57 NY2d at 254), defendant's waiverof his right to counsel was valid.[*3]
Despite defendant's further assertion that his January 7, 2004statement was improperly obtained because the police took him from Newburgh to Albany in violationof a condition of the waiver, County Court determined that the only condition Osofisan had placed onthe waiver was that he be notified if defendant was going to be formally charged, which the police fullycomplied with. Inasmuch as Osofisan's testimony that he required notification if the officers left themotel room with defendant conflicted with that of the testifying officers, we decline to disturb CountyCourt's credibility determination on this issue (see People v Bermudez, 31 AD3d 968, 968 [2006], lv denied 8NY3d 944 [2007]). Accordingly, defendant's right to counsel was not violated and the January 7, 2004statement was therefore admissible.
With respect to the three subsequent written statements made by defendant during the period fromJanuary 25-26, 2004, we find that County Court properly declined suppression. On January 9, 2004,Osofisan was informed by the prosecutor that White was being investigated in connection with thehomicide and that a potential conflict of interest existed in his representation of both her and defendant.After some discussion, Osofisan agreed and signed a document, in the presence of the prosecutor andmembers of the City of Troy Police Department, withdrawing as counsel for defendant.[FN2]This document was provided to the People, and the other investigating officers were informed thatOsofisan no longer represented defendant. While Osofisan made attempts to contact defendant toinform him of the withdrawal, he was unable to reach defendant, who testified that he was never madeaware of Osofisan's actions. More than two weeks later, on January 25, 2004, the police soughtdefendant for further questioning. According to police, after agreeing to accompany detectives to thepolice station, defendant waived his Miranda rights and subsequently provided three writtenstatements, without ever requesting counsel or indicating that he had an attorney.
Where, as here, "the police wish[ed] to question defendant without counsel on the same matterafter the right ha[d] attached, it [was] as a rule their burden to determine whether representationcontinue[d]" (People v West, 81 NY2d at 376; see People v Marrero, 51 NY2d 56,59 [1980]). The police may not rely on ambiguities in the attorney-client relationship to justify thequestioning of a defendant without counsel and, therefore, where the police are uncertain as to whetherthe representation has ceased, they should not question a defendant regarding the matter (seePeople v West, 81 NY2d at 380; People v Marrero, 51 NY2d at 59; People vColeman, 42 NY2d 500, 507 [1977]). Here, however, we find no such uncertainty.
Police were present when Osofisan, in the presence of the prosecutor, signed the documentindicating that he would no longer represent defendant, and the investigating officers relied upon this factin pursuing further questioning of defendant (compare People v Cotton, 280 AD2d 188, 193[2001], lv denied 96 NY2d 827 [2001] [finding that there was "no evidence that the policewere aware of the conversation between [the] defendant's attorney and the Assistant District Attorney"where counsel indicated that he could no longer represent the defendant due to [*4]a conflict and, in any event, the police did not rely upon the disclaimer ofrepresentation in questioning the defendant]). Further, although the evidence at the Huntleyhearing established that Osofisan neither consulted with defendant prior to withdrawing fromrepresentation nor advised defendant of this fact prior to subsequent police questioning, we perceive noobligation on the part of the police—in light of the fact that they possessed a direct, clear andunambiguous awareness that the representation had ceased—to question the validity of thewithdrawal or seek assurance that Osofisan had communicated this fact to defendant.
To be sure, while defendant's lack of awareness of counsel's withdrawal may have precluded aneffective termination of the attorney-client relationship, we need not "decide whether representation[actually] ceased because under [People v Hobson (39 NY2d 479 [1976], supra)] it[does] not matter: the 'important factor . . . [is] the police awareness of an attorney's[continued] appearance on the defendant's behalf, rather than the precise terms of the retainer orappointment' " (People v West, 81 NY2d at 376 n 2, quoting People v Marrero, 51NY2d at 59; see People v Singer, 44 NY2d 241, 251 [1978]). Indeed, we cannot concludethat under these circumstances the police were required to do more to honor defendant's right tocounsel, as "it would be unreasonable to require the police to cease a criminal investigation and begin aseparate inquiry to verify whether the defendant is actually represented by counsel" (People vGrice, 100 NY2d at 324). In any event, "[e]ven assuming that . . . defendant'sindelible right to counsel [remained] attached, the right was not violated by [his January 25, 2004]interrogation. 'Where a police officer does not know and cannot be charged with knowledge that thesuspect has a lawyer, the officer has no obligation to refrain from asking questions' " (People v Bongarzone-Suarrcy, 6 NY3d787, 788-789 [2006], quoting People vCarranza, 3 NY3d 729, 730 [2004]). As such, we find no fault with County Court's refusal tosuppress these statements.
Defendant next contends that his convictions were not supported by legally sufficient evidencebecause the People failed to establish that he intended to assist in killing the victim. Initially, we disagreewith the People's assertion that defendant failed to preserve this issue for our review. At the close of thePeople's case, defense counsel made a specific and detailed motion to dismiss which was directed atthe failure to prove the element of intent to kill, an element of each of the crimes for which defendantwas convicted (see Penal Law §§ 105.15, 125.27 [1] [a] [v], [vi]). This wassufficient to preserve defendant's current challenge to the legal sufficiency of his convictions (seePeople v Gray, 86 NY2d 10, 19 [1995]; People v Carter, 40 AD3d 1310, 1311 [2007], lv denied 9NY3d 873 [2007]).
Turning to the merits, the evidence at trial, much of which was corroborated by defendant'stestimony and the contents of his written statements, revealed that in early December 2003, Hofflershowed defendant the victim's driver's license, drove defendant to the victim's house to show him wherethe victim lived, and offered to pay defendant to kill the victim. Defendant agreed to kill the victim andaccepted a gun, five $100 bills and crack cocaine from Hoffler. When defendant failed to commit thecrime, Hoffler enlisted Heckstall to kill the victim. The day before the murder, Hoffler, after informingdefendant that he needed a cellular "TRAC phone" to call the victim without calls being traced back tohim, was provided one by defendant. The evidence revealed that the TRAC phone was used to call thevictim and lure him to the site of the murder. That same day, defendant also acquired a gun and bulletsfor Hoffler, who instructed defendant to hide the extra bullets, which defendant did. Later that evening,defendant received a phone call from Hoffler, who informed him that he had found a location to whichhe could lure the victim.
Between 5:30 and 6:00 a.m. the following morning, defendant received two telephone [*5]calls from Hoffler, who, accompanied by Heckstall, picked him upshortly thereafter in a rental car. Telephone records also revealed that the TRAC phone called thevictim's cellular telephone at 6:09 a.m. that morning, and the victim's mother testified that she heard thevictim say "478 6th Avenue" and told the caller he would be there in 20 minutes. Hoffler, Heckstall anddefendant then drove to that location. Defendant recounted that, shortly after Heckstall got out of thecar, he heard a gunshot and Heckstall ran back to the car and got in. Hoffler immediately askedHeckstall if the victim was dead and, after Heckstall responded that he had shot the victim in the chest,Hoffler complained that Heckstall had not shot the victim in the head.
Viewing the evidence in a light most favorable to the People (see People v Smith, 6 NY3d 827, 828-829 [2006], cert denied548 US 905 [2006]), we find the evidence legally sufficient to satisfy the element of intent for both themurder and conspiracy charges. Defendant contends that because he testified that he only helpedHoffler and Heckstall in order to obtain crack cocaine and that he was unaware that the actions he tookwould assist in the victim's murder, there is no evidence that he shared the intent to kill the victim. Wedisagree. Intent to commit a crime may be inferred from a defendant's conduct and the surroundingcircumstances (see People v Ozarowski, 38 NY2d 481, 489 [1976]). Contrary to defendant'scontentions, the trial evidence and, more particularly, his written statements reveal that he played anactive and instrumental role in obtaining the murder weapon and the TRAC phone used to lure thevictim to his death, and that, prior to obtaining these items, defendant had full knowledge that theywould be used to cause the victim's death. This evidence was sufficient to establish defendant's criminalintent. Moreover, defendant's contention that he helped Hoffler and Heckstall out of fear is belied by histrial testimony and written admissions.
In addition, "after weighing the relative probative force of conflicting inferences that may fairly bedrawn from the evidence" (People v McKnight, 306 AD2d 546, 547 [2003], lvdenied 100 NY2d 596 [2003]; see People v Bleakley, 69 NY2d 490, 495 [1987]), weare unpersuaded that the verdict was against the weight of the evidence. The issue of defendant's intentto aid Hoffler and Heckstall in the slaying of the victim ultimately came down to a credibilitydetermination, and the jury obviously believed the People's witnesses and defendant's prior statementsover the trial testimony of defendant. Because we accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony and observe demeanor (see People v Romero, 7 NY3d 633, 645 [2006]; People v Nealon, 36 AD3d 1076,1078 [2007], lv denied 8 NY3d 988 [2007]), and the verdict is not clearly unsupported by therecord (see People v Jegede, 304 AD2d 850, 851 [2003], lvs denied 100 NY2d 539[2003], 3 NY3d 676 [2004]; People v Maxwell, 260 AD2d 653, 654 [1999], lvdenied 93 NY2d 1004 [1999]), we decline to disturb it.
Defendant's remaining contentions do not require extended discussion. His claim that certainremarks made by the prosecutor during summations were improper and prejudicial is unpreserved forour review, as defendant failed to register an objection to any such statements (see People vWilliams, 46 NY2d 1070, 1071 [1979]; People v Wilson, 255 AD2d 612, 614 [1998],lv denied 93 NY2d 981 [1999]). Similarly, by failing to object before the jury was dischargedor otherwise request further procedures, defendant's contention that County Court should have inquiredfurther into an individual juror's vote upon the guilty verdict is not preserved for appellate review(see People v Mercado, 91 NY2d 960, 963 [1998]). In any event, the juror's response wasnot equivocal so as to require further inquiry by County Court (compare People v Pickett, 61NY2d 773, 774-775 [1984]; People v Garvin, 90 AD2d 682, 683 [1982]). Finally, we areunpersuaded that defendant's sentence was harsh and excessive. In light of the [*6]violent and heinous nature of the offense which defendant assisted inbringing about, as well as defendant's lengthy criminal history, we find no abuse of County Court'sdiscretion or extraordinary circumstances warranting a modification of the sentence (see People v Caruso, 34 AD3d 863,865 [2006], lv denied 8 NY3d 879 [2007]; People v Gray, 32 AD3d 1052, 1053 [2006], lv denied 7NY3d 902 [2006]).
Cardona, P.J., Kane and Stein, JJ., concur; Carpinello, J., not taking part. Ordered that thejudgment is affirmed.
Footnote 1: Following separate jury trials,Heckstall and Hoffler were likewise found guilty of, among other things, murder in the first degree.Heckstall's conviction was recently affirmed by this Court (People v Heckstall, 45 AD3d 907 [2007], lv denied 10 NY3d766 [2008]) and Hoffler's conviction was reversed and the matter was remitted for a new trial(People v Hoffler, 53 AD3d 116 [2008]).
Footnote 2: Contrary to defendant's assertions,there is no evidence that the People intimidated a less experienced Osofisan into terminating hisrepresentation of defendant or otherwise fraudulently caused him to stop representing defendant.