| People v Ardrey |
| 2012 NY Slip Op 00661 [92 AD3d 967] |
| February 2, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CharlesArdrey, Also Known as Murda, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered October 2, 2008, upon a verdict convicting defendant of the crimes of attempted assaultin the first degree (two counts), assault in the second degree (two counts), criminal possession ofa weapon in the second degree (two counts), tampering with physical evidence, criminalpossession of a controlled substance in the fifth degree and reckless endangerment in the firstdegree.
Defendant was convicted after a jury trial of multiple crimes arising from an August 2007incident in the City of Schenectady, Schenectady County, in which he and codefendant JoelHernandez allegedly exchanged gunfire with a third individual, injuring two innocentbystanders.[FN1] Defendant was sentenced as a second felony offender to an aggregate prison term of 30 years.Defendant appeals, and we affirm.[*2]
Initially, we reject defendant's contention that hisadmission to police that he was carrying ammunition should have been suppressed on the groundthat it was made during a custodial interrogation without the requisite warnings (see Mirandav Arizona, 384 US 436, 444 [1966]). Following his arrest, defendant was transported to thepolice station, where an officer patted him down and asked him "if he had anything on him, anyweapons," and defendant replied that he had an ammunition clip in his pocket. He contends thatthe inquiry was improper because he had not yet received Miranda warnings, and theofficer should have known that the question was "reasonably likely to elicit an incriminatingresponse" (People v Paulman, 5NY3d 122, 129 [2005] [internal quotation marks and citations omitted]; accord Matter of Dalton BB., 61 AD3d1105, 1106 [2009]). However, the officer testified that he asked the question to ensure thesafety of detectives who were about to interview defendant, and that it was the routine practice ofthe Schenectady Police Department to ask suspects if they had weapons before such interviews.Accordingly, the record supports County Court's determination that the inquiry was "part of thenormal utterances attendant to a search of an individual under arrest" and not an investigatoryinterrogation (People v Nesbitt, 56AD3d 816, 819 [2008], lv denied 11 NY3d 928 [2009]; see People vBurgess, 241 AD2d 765, 767 [1997], lv denied 91 NY2d 870 [1997]). Notably, thetestimony established that even if defendant had not made the challenged statement, theammunition clip would inevitably have been discovered when police subsequently conducted aroutine inventory search of his person (see People v Turriago, 90 NY2d 77, 85-88[1997]).
Defendant next contends that County Court erred in denying his Batson objection tothe People's use of a peremptory challenge against an African-American juror (see Batson vKentucky, 476 US 79, 94-98 [1986]).[FN2] We disagree. When a claim is made that a peremptory challenge has been used to exclude a juroron the basis of race, a three-step test is employed. First, the objecting party must make a primafacie showing that the challenge was exercised for a discriminatory reason; upon such a showing,the party who exercised the challenge is obligated to provide a race-neutral reason. When such areason has been offered, the burden shifts back to the objecting party to prove that the truepurpose was discriminatory. The court then determines whether the allegedly neutral reason isgenuine or pretextual (see People vHecker, 15 NY3d 625, 634-635 [2010], cert denied sub nom. Black v New York,563 US —, 131 S Ct 2117 [2011]; People v Smocum, 99 NY2d 418, 420[2003]).
Here, when the Batson objection was raised, County Court noted that the People hadexercised peremptory challenges against the only two African-Americans on the jury panel, andasked for an explanation.[FN3] The prosecutor responded that the challenged juror was too[*3]"outspoken," as she had remarked that another juror should bedismissed because of a comment he had made, and that the People were seeking mature jurorswho did not work in the legal field, while the juror in question was young and worked for anattorney.[FN4] Defendant's counsel stated that he could not address the juror's alleged remark because he hadnot heard it, and asked rhetorically, "[H]ow do you respond to [the prosecutor] seeking olderjurors as opposed to younger jurors?" He did not address the prosecutor's claim regarding jurorsin the legal field. County Court then determined that the prosecutor's reasons for striking thejuror were not pretextual.
"[T]he trial court's decision on the ultimate question of discriminatory intent represents afinding of fact of the sort accorded great deference on appeal because it largely will turn onevaluation[s] of credibility" (People vKnowles, 79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011] [internalquotation marks and citations omitted]). Here, the prosecutor's reasons for exercising thechallenge were "facially permissible" (People v Smocum, 99 NY2d at 422) and thussufficient to satisfy the People's burden and to overcome any inference of discrimination (seePeople v Knowles, 79 AD3d at 20; People v Skervin, 13 AD3d 661, 662 [2004], lv denied 5NY3d 833 [2005]). Defendant failed to meet his ultimate burden of showing that the reasonsgiven by the People were pretexts for intentional discrimination, and we find no reason to disturbCounty Court's determination (see People v Skervin, 13 AD3d at 662; People vWilliams, 306 AD2d 691, 692 [2003], lv denied 1 NY3d 582 [2003]).
Defendant next challenges his convictions on two counts of criminal possession of a weaponin the second degree (see Penal Law § 265.03 [1] [b]; [3]), contending that CountyCourt's jury charge improperly permitted the jury to find defendant guilty if he possessed a .25caliber handgun in locations not enumerated in the indictment.[FN5] As pertinent here, the challenged counts charged defendant with possessing the handgun "at orin the vicinity of Nott Terrace and Eastern Avenue in the City and County of Schenectady," whilethe jury was charged that the People were required to prove that defendant possessed the gun "inthe County of Schenectady." [*4]During deliberations, the jurysubmitted a note to County Court asking, "Does the charge of weapon possession have to applyto a particular area?" Defendant's counsel argued that the court should supplement the originalinstruction by requiring the jury to find that the possession occurred at the location specified inthe indictment, but the court rejected that argument and advised the jury that, as specified in theoriginal instruction, "the charges must apply to the County of Schenectady."
A defendant's right "to be tried and convicted of only those crimes and theories charged inthe indictment is fundamental" (People v Grega, 132 AD2d 749, 750 [1987], mod72 NY2d 489 [1988]). Thus, a jury charge may not constructively amend an indictment byvarying the theory of the prosecution (see People v Charles, 61 NY2d 321, 329 [1984];People v Buanno, 296 AD2d 600, 601 [2002], lv denied 98 NY2d 695 [2002];People v Grega, 132 AD2d at 750). However, not every fact mentioned in an indictmentis material to a defendant's guilt (seePeople v Hilliard, 49 AD3d 910, 912-913 [2008], lv denied 10 NY3d 959[2008]; People v Spratley, 144 AD2d 769, 770-771 [1988], lv denied 73 NY2d896 [1989]), and an amendment in the location where a crime is alleged to have taken place ispermissible when it does not prejudice the defendant nor alter the People's theory of prosecution(see CPL 200.70; People vCruz, 61 AD3d 1111, 1112 [2009]; People v Witko, 214 AD2d 824, 824-825[1995], lv denied 86 NY2d 805 [1995]; People v Clapper, 123 AD2d 484, 485[1986], lv denied 69 NY2d 825 [1987]). Here, the People's theory was that bothdefendants constructively possessed the weapon throughout the incident, which began as theyretrieved the gun from a Columbia Street residence, continued during the gunfight on HulettStreet, and culminated near Nott Terrace and Albany Street, where defendant tossed the gunaway as he tried to flee. All of these addresses are located in the County of Schenectady; thus,County Court's charge did not alter the theory of prosecution. Moreover, defendant's theory ofdefense was not that he did not possess the gun at the location specified in the indictment, butthat he did not possess it at all. Accordingly, he was not prejudiced, and the court did not err inits charge to the jury (see People v Cruz, 61 AD3d at 1112; People v Buanno, 296AD2d at 601; compare People v Grega, 132 AD2d at 749-750).
Finally, we reject defendant's contention that his sentence is harsh or excessive. Defendantwas sentenced as a second felony offender on nine convictions arising from his participation in adaytime gunfight on a busy city street. Two bystanders, as well as Hernandez, received gunshotwounds, and deaths or additional injuries could easily have occurred. At the time of these crimes,defendant was on parole for a prior felony drug conviction in Vermont. Given his criminalhistory, failure to take responsibility for his actions or to express remorse, and "the brazen natureof [his] crimes" (People vHernandez, 89 AD3d 1123, 1126 [2011]), we find no abuse of discretion norextraordinary circumstances warranting a modification of County Court's sentence (see People v Sudler, 75 AD3d 901,906 [2010], lv denied 15 NY3d 956 [2010]; People v Elliot, 57 AD3d 1095, 1097-1098 [2008], lvdenied 12 NY3d 783 [2009]).
Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The other participants were alsoconvicted of crimes arising from the shootout, and their convictions were affirmed on appeal (People v Hernandez, 89 AD3d1123 [2011]; People vMcCaskill, 76 AD3d 751 [2010]).
Footnote 2: The objection was initiallyraised by defense counsel for Hernandez, but defendant's counsel implicitly joined in theobjection by responding to the People's reasons for the challenge on behalf of both defendants.
Footnote 3: County Court thus apparentlyfound, without expressly requiring the objecting party to establish, a prima facie case. However,as the People were provided with an opportunity to explain the challenge and the court then ruledon the ultimate issue of purposeful discrimination, this Court may not " 'revisit the issue ofwhether a prima facie case has been made' " (People v Fulton, 24 AD3d 959, 962 [2005], lv denied 6NY3d 847 [2006], cert denied 549 US 1037 [2006], quoting People v Smocum,99 NY2d at 422; see People v Williams, 306 AD2d 691, 691-692 [2003], lvdenied 1 NY3d 582 [2003]).
Footnote 4: The prosecutor also expressedconcern that, in a case involving weapons, the challenged juror was wearing a shirt with letteringthat appeared to read "Gun-it." This reason was withdrawn when defendant explained that thereference was not to guns, but to an entertainer called "G-Unit."
Footnote 5: Defendant told police that heused the .25 caliber handgun during the shootout, but the People offered testimony alleging thatthis gun was actually used by Hernandez, and defendant used a different weapon that was notrecovered. According to the People, Hernandez handed the .25 caliber weapon to defendant whilethe two were escaping the scene in a getaway car; police recovered the gun in the area of NottTerrace and Eastern Avenue after defendant threw it away while fleeing on foot.