| People v Dozier |
| 2012 NY Slip Op 02718 [94 AD3d 1226] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Cedric D.Dozier, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Karin Intermill of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Broome County (Sherman, J.),rendered February 19, 2009, upon a verdict convicting defendant of the crimes of assault in thefirst degree and assault in the second degree, and (2) by permission, from an order of said court,entered February 10, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
In the early morning hours of July 16, 2007, the victim was in bed in a hotel room in theTown of Union, Broome County when an intruder burst into the room, jumped on top of her andslashed her multiple times with a sharp, unknown object on her face and body, threatened to killher and then fled without taking anything. The victim had recently arrived at the hotel with herformer boyfriend, Celene Thompson, who had been talking on his cell phone in the bathroom for15 minutes and then sat on the empty adjacent bed, speaking with her just prior to the attack.Thompson, who did not attempt to intervene or say anything during the attack, was not attacked,threatened or spoken to by the intruder. Although the intruder's face was concealed, the victimidentified him—based upon his build, voice and gait—as defendant, whom she hadknown for a number of years. Two days prior, the victim had spent the night with defendant, afterwhich he went to her home and accused her of stealing cash from him. Police were summonedand defendant indicated that he would "handle the problem in his own way."[*2]
Defendant and Thompson were jointly indicted and triedbefore a jury as accomplices for assault in the first and second degrees. Thompson's conviction ofassault in the second degree was affirmed on appeal (People v Thompson, 79 AD3d 1269 [2010]). Defendant wasconvicted of both counts and sentenced, as a violent felony offender, to an aggregate prison termof 15 years, plus postrelease supervision. His subsequent motion to vacate his judgment ofconviction pursuant to CPL article 440 was denied without a hearing. Defendant now appealsfrom the judgment of conviction and, with the permission of this Court, from the order denyinghis motion to vacate.
Initially, defendant's challenge to the legal sufficiency of the evidence was not preserved forour review given that only a general motion to dismiss was made (see People v Danford, 88 AD3d1064, 1065 [2011], lv denied 18 NY3d 882 [2012]). Upon our weight of theevidence review, looking at the evidence in a neutral light, we find that, while an acquittal wouldnot have been unreasonable had the jury discredited the victim's identification of defendant, thejury was fully justified in finding defendant guilty beyond a reasonable doubt (see People v Danielson, 9 NY3d342, 348 [2007]). Indeed, the evidence strongly supports the conclusion that defendant andThompson conspired for Thompson to bring the victim to the hotel and leave the door unlockedto facilitate defendant's entry; Thompson advised defendant of their location and defendantarrived shortly thereafter and attacked the victim in retaliation for her alleged theft.
The circumstances surrounding the victim's ability to identify defendant as the attacker werefully explored at trial for the jury, whose determination we accord great deference given its directopportunity to assess her credibility and the strength of her identification (see People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's claim that she delayedidentifying him as her attacker, the victim testified that she so identified him during one of her911 calls, which were played for the jury. The victim also denied telling police that her attackernever said a word, as recorded by police in her initial statement at the hospital, testifying that shesaid it was Thompson who remained silent. We do not find that any weaknesses in her testimonyrendered her unworthy of belief (seePeople v Sharpe, 70 AD3d 1184, 1185 [2010], lv denied 14 NY3d 892 [2010]).
With regard to the cell phone record evidence, Thompson admitted that he used a cell phonebelonging to his cousin to call the victim many times, including the morning of the attack. Thevictim had called defendant on the prepaid cell phone linked to defendant, just two daysearlier.[FN*]As we noted in Thompson's appeal, the cell phone records established that defendant andThompson repeatedly communicated immediately prior to and after the attack (People vThompson, 79 AD3d at 1271). Indeed, neither the lack of a confession and physical evidencenor the nonrecovery of the weapon undermined the weight of the credible evidence establishingdefendant's guilt.
Next, the record on defendant's direct appeal does not support his contention that he wasdenied meaningful representation at trial (see People v Caban, 5 NY3d 143, 152 [2005]). Regarding counsel'sadvice that defendant not testify before the grand jury that handed up the [*3]superceding indictment, the record reflects that this was a legitimatestrategic decision of counsel (see Peoplev Lasher, 74 AD3d 1474, 1476 [2010], lv denied 15 NY3d 894 [2010]), whichcounsel explained on the record to defendant, who willingly heeded this advice andunequivocally withdrew his earlier request to testify. Moreover, defendant has not demonstratedprejudice or established that, had he testified, the outcome would have been different (seeid.). With regard to defendant's decision not to testify at trial, after the People rested, thematter was discussed off the record, and defense counsel placed on the record that he anddefendant had a "lengthy discussion" and decided against him testifying. Thus, the trial recordsupports the conclusion that the decision that defendant not testify was "a strategic one. . . made by defendant in consultation with counsel" (People v Borthwick, 51 AD3d1211, 1216 [2008], lv denied 11 NY3d 734 [2008]; see People v White, 73NY2d 468, 478 [1989], cert denied 493 US 859 [1989]). The circumstances under whichdefendant made that decision are outside the scope of the record on defendant's direct appeal.
Also meritless is defendant's claim that counsel was ineffective in failing to prevent the juryfrom hearing about his statement, made to officers who responded to his confrontation with thevictim two days before the attack, that he would handle the dispute with the victim over themissing cash "in his own way." Based upon the People's failure to provide notice (seeCPL 710.30), defendant's prior defense counsel moved in an omnibus motion to preclude thisstatement. County Court issued a written decision denying defendant's preclusion motion as tothis statement, finding that notice was not required, but granted preclusion as to anotherstatement. We cannot conclude that counsel's strategic decision to pursue preclusion oversuppression (see CPL 710.30 [3]; People v Kirkland, 89 NY2d 903, 904-905[1996]) constituted ineffective assistance, particularly given the absence of any evidence that thestatement was custodial or involuntary so as to be subject to suppression (see CPL 710.20[2], [3]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Nguyen, 90 AD3d 1330, 1332-1333 [2011]; People vPray, 199 AD2d 646, 647 [1993], lv denied 83 NY2d 809 [1994]). Further, defensecounsel did not unduly emphasize this statement to the jury but, rather, attempted to interpret it ina nonthreatening manner.
Defendant's claim that defense counsel was ineffective for failing to pursue, as a lesserincluded offense, a charge of assault in the third degree is unavailing. When counsel inquiredabout this charge, County Court correctly ruled that there was no reasonable view of the evidencethat the victim's injuries were caused by anything other than a dangerous instrument (seePenal Law § 10.00 [13]; § 120.00 [1]; § 120.05 [2]; People v Hercules, 47 AD3d 835,836-837 [2008], lv denied 10 NY3d 766 [2008]; People v Berry, 123 AD2d 477,478 [1986], lv denied 69 NY2d 708 [1986]). Assuming without deciding that assault inthe third degree is a lesser included offense of first degree assault (see Penal Law §120.10 [2]), we cannot conclude that counsel lacked a legitimate tactical reason for not giving thejury that lesser option (see People v Nguyen, 90 AD3d at 1333-1334). We have revieweddefendant's remaining contentions on direct appeal, including those raised in his pro sebrief—all of which are unpreserved—and conclude that they similarly lack merit.
Finally, County Court did not err in denying defendant's pro se CPL 440.10 motion without ahearing. Many of the issues were reviewable on direct appeal and, thus, were not the propersubject of a CPL article 440 motion (see CPL 440.10 [2] [b]). The other issues, thoughbased on information outside the trial record—such as the availability of alibi witnessesand newly discovered evidence—are nevertheless wholly unsupported by any affidavits ordocumentary evidence (see CPL 440.30 [1], [4] [b]; People v Satterfield, 66NY2d 796, 799[*4][1985]; People v Beverly, 5 AD3d 862, 865 [2004], lv denied 2NY3d 796 [2004]). Further, under the circumstances of this case, defendant has not demonstratedthat assigned counsel was remiss in not joining in his meritless pro se motion (see People v Trombley, 91 AD3d1197, 1202-1203 [2012]). Defendant's remaining contentions regarding the CPL article 440motion have been considered and determined to be unpersuasive.
Mercure, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote *: Defendant had obtained thephone using an alias and the e-mail address and unlisted phone number of a friend with whom hehad lived briefly. That friend testified that she had never used that cell phone.