| People v Molano |
| 2010 NY Slip Op 01382 [70 AD3d 1172] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carl Molano,Appellant. |
—[*1]
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered June 20, 2007, upon a verdict convicting defendant of the crimes of assault in thefirst degree, reckless endangerment in the first degree, criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree.
The underlying facts of this matter are also set out in a decision of this Court addressing theappeal of codefendant Dwayne Ham (People v Ham, 67 AD3d 1038 [2009]). Briefly, in April 2005,Ham and the victim argued while playing basketball at a public park. The argument escalateduntil a mutual friend separated Ham and the victim. Ham left the park for a short time, thenreturned in a car driven by defendant, his brother. According to the victim and an eyewitness,Ham walked towards the victim and asked to speak with him. When the victim approached, Hampulled out a handgun and began firing at him. The victim responded by taking cover behind atree and returning fire with his own handgun. After Ham ran out of bullets, the victim fled thepark, firing multiple shots in the process. As the victim was running across the park, defendantallegedly got out of the car, knelt down and shot at the victim with a rifle, striking him.
Defendant and Ham were subsequently charged in an indictment with numerous crimes,including attempted murder in the second degree, assault in the first degree and assault in the[*2]second degree. Following a jury trial, both were convicted ofassault in the first degree, reckless endangerment in the first degree, criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree.Thereafter, defendant was sentenced to an aggregate prison term of 20 years to be followed byfive years of postrelease supervision. Defendant now appeals.
Initially, defendant complains that County Court erroneously rejected several of hischallenges to prospective jurors for cause that, given his exhaustion of his peremptorychallenges, warrant reversal.[FN1]In particular, defendant points to a prospective juror who knew the prosecutor's mother and hadmet the prosecutor in passing, as well as another acquainted with an assistant district attorneywho did not work on the case, a peripheral potential witness who did not ultimately testify, andrelatives of the victim, one of whom did testify. All of those relationships, however, were eithernot particularly close ones or arose in a professional context and were thus not of a type topreclude either prospective juror from rendering an impartial verdict (see CPL 270.20 [1][c]; People v Rentz, 67 NY2d 829, 830-831 [1986]; People v Provenzano, 50NY2d 420, 424-425 [1980]; People vCassidy, 16 AD3d 1079, 1080 [2005], lv denied 5 NY3d 760 [2005]; Peoplev Pickren, 284 AD2d 727, 727-728 [2001], lv denied 96 NY2d 923 [2001]). As bothprospective jurors gave unequivocal assurances that they could set aside any potential bias andrender an impartial verdict, County Court appropriately denied defendant's challenges for cause(see People v Watkins, 59 AD3d1128, 1130 [2009], lv denied 12 NY3d 922 [2009]; People v Di Napoli, 28 AD3d1013, 1014 [2006], lv denied 7 NY3d 812 [2006]).
A more troubling issue involves County Court's suggestion, adopted by the parties, thatalternate jurors be selected from the list of those prospective jurors who had previously beenexcused by virtue of peremptory challenges. One of those alternates, who later became a juror,had been excused by defendant's peremptory challenge. Alternates must be selected in the samemanner as jurors (see CPL 270.30 [1]), requiring County Court to follow the selectionprocedures of CPL 270.15 to select alternates and "exclude [a potential alternate] from service"if a peremptory challenge is exercised (CPL 270.25 [1]). The method used was thus improper,but defendant's challenge to that method must be preserved by appropriate objection (seePeople v Agramonte, 87 NY2d 765, 770-771 [1996]; People v Walston, 277 AD2d593, 595 [2000], lv denied 96 NY2d 764 [2001]) and may also be waived by hisaffirmative acts (see People v Colon, 90 NY2d 824, 826 [1997]). Defendant did notobject to the procedure and, indeed, agreed to it.[FN2]Additionally, a defendant is ordinarily entitled to withdraw a peremptory challenge, [*3]and the fact that defendant effectively did so here does not warrantreversal by itself (see People v Quinones, 222 AD2d 208, 208 [1995], lv denied87 NY2d 924 [1996]; People v Roberts, 215 AD2d 148, 148 [1995], lv denied 86NY2d 783 [1995]). We do not approve of this method to select alternates, and County Courtwould do well to avoid it in the future. The fact remains, however, that defendant was notdeprived of the right to a jury of his own choosing, and we accordingly perceive no reason toreach this unpreserved and waived issue (see People v Roberts, 215 AD2d at 148).
Turning to the evidence at trial, the People concede that defendant's conviction on the countof assault in the first degree must be reduced to the lesser included offense of attempted assaultin the first degree given our holding upon Ham's appeal that the trial evidence was legallyinsufficient to support a finding that the victim suffered serious physical injury (People vHam, 67 AD3d at 1039-1040). We do not agree with defendant, however, that his convictionfor reckless endangerment in the first degree is based upon legally insufficient evidence. Thatcharge alleged that, while firing shots at the victim, defendant acted with depraved indifferenceto human life and recklessly created a grave risk of death to another individual who was nearby(see Penal Law § 120.25). Viewing the evidence in the light most favorable to thePeople, the victim's testimony that the individual was running with him, as well as theindividual's statements that he was close enough to see and hear the victim speak to him at thetime of the shooting, provided legally sufficient evidence to support defendant's conviction (see People v Vargas, 60 AD3d1236, 1238 [2009], lv denied 13 NY3d 750 [2009]; People v Graham, 14 AD3d 887,889 [2005], lv denied 4 NY3d 853 [2005]).
Nor are we persuaded that the verdict as to this count, as well as the weapons possessioncounts, is against the weight of the evidence. A different verdict would not have beenunreasonable given the conflicting evidence in the record and the criminal histories of both thevictim and the nearby individual, including pending charges that both hoped would be moreadvantageously resolved if they cooperated in the proceedings against defendant and Ham.Nevertheless, the jury credited their version of events over the less than compelling testimonyoffered by defendant in support of his claim that he was not present and, according deference tothat determination, we see no reason to disturb it (see People v Bleakley, 69 NY2d 490,495 [1987]; People v Vargas, 60 AD3d at 1238-1239).
Defendant further complains of allegedly improper statements made by the prosecutor, mostnotably in her opening and closing statements when she stated that the crimes at issue occurredin a public park and asked the jury to hold defendant accountable for his actions in such a"sacred bright spot," but defendant failed to object to those comments and his argument isunpreserved for our review (see Peoplev Romero, 7 NY3d 911, 912 [2006]; People v Booker, 53 AD3d 697, 704 [2008], lv denied 11NY3d 853 [2008]). Regardless, the prosecutor immediately made clear that the jurors should finddefendant guilty not because of their dislike for what happened but, rather, because the crimeshad been proven beyond a reasonable doubt, and we cannot say that these isolated commentsreferring to the well-established fact that the crime occurred in a park constituted an improperappeal to the jurors' sympathy (seePeople v Clark, 52 AD3d 860, 863 [2008], lv denied 11 NY3d 831 [2008];People v Cruz, 292 AD2d 196 [2002], lv denied 98 NY2d 636 [2002]). Theremaining instances of prosecutorial misconduct pointed to by defendant, although arguablyimproper, were infrequent, drew successful objections from defendant and cautions from CountyCourt, and were not so substantially prejudicial in the aggregate that they deprived defendant ofa fair trial (see People v Nelson, 68AD3d 1252, 1255 [2009]; People vMitchell, 55 AD3d 1048, 1051-1052 [2008], lv [*4]denied 12 NY3d 856 [2009]).
Defendant further argues that he was deprived of the effective assistance of counsel. Asnoted above, defense counsel failed to object to the method of selecting alternates proposed byCounty Court, but jury selection involves the "quintessentially tactical decision" of whetherdefendant's interests would be assisted or harmed by a particular juror (People v Cordova-Diaz, 55 AD3d360, 361 [2008], lv denied 12 NY3d 782 [2009]). With that in mind, the record doesnot reflect that counsel's decision to allow a previously rejected prospective juror to serve as analternate fell below the standard for effective assistance (see People v Colon, 90 NY2d at826; People v Turner, 37 AD3d874, 876-877 [2007], lv denied 8 NY3d 991 [2007]; People v Driscoll, 251AD2d 759, 761 [1998], lvs denied 92 NY2d 896, 949 [1998]). Likewise, defendantpoints to counsel's failure to object to certain alleged prosecutorial misconduct, but theprosecutor's comments, even if improper, were "not so prejudicial to defendant as to rendercounsel's failure to object to them evidence of ineffective assistance of counsel" (People v Albanese, 38 AD3d1015, 1019 [2007], lv denied 8 NY3d 981 [2007]). Notwithstanding defendant'smyriad arguments regarding counsel's inadequacy, defense counsel employed a coherent defensestrategy in the face of multiple eyewitnesses to defendant's crimes that included motion practiceand vigorous cross-examination of witnesses, and that strategy bore fruit in defendant's acquittalupon the top count of the indictment and the dismissal of multiple first degree recklessendangerment counts. Viewing this case in its totality and as of the time of the representation, weare satisfied that defendant received meaningful representation (see People v Baldi, 54NY2d 137, 147 [1981]; People vBlanchard, 63 AD3d 1291, 1292 [2009], lv denied 13 NY3d 794 [2009]).
As remittal is necessary for resentencing on the attempted assault conviction, defendant'sargument that his sentence was harsh and excessive is academic (see People v Loomis, 56 AD3d1046, 1047 [2008]). We have reviewed defendant's remaining arguments and find them tobe without merit.
Spain, Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing defendant's conviction for assault in the first degree under count three of theindictment to attempted assault in the first degree; vacate the sentence imposed thereon andmatter remitted to the County Court of Schenectady County for resentencing; and, as somodified, affirmed.
Footnote 1: One such challenge need not beconsidered as the People, not defendant, exercised a peremptory challenge to remove theprospective juror (see CPL 270.20 [2]; People v Dunkley, 189 AD2d 776, 777[1993], lv denied 81 NY2d 884 [1993]).
Footnote 2: Only Ham consented to thisprocedure on the record, with defendant remaining silent, but the parties agreed that Ham wouldspeak for both during jury selection and defendant's silence constituted a waiver of the issue(see CPL 270.25 [3]; People v Hilton, 187 AD2d 608, 608-609 [1992], lvdenied 81 NY2d 887 [1993]; People v Foster, 100 AD2d 200, 206-207 [1984],mod 64 NY2d 1144 [1985], cert denied 474 US 857 [1985]).