| People v Goldston |
| 2015 NY Slip Op 02146 [126 AD3d 1175] |
| March 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTasheem Goldston, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
P. David Soars, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedJuly 26, 2011 in Albany County, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
Defendant was charged in a 10-count indictment with various crimes stemming fromtwo separate incidents—a shooting that occurred in June 2010 and the subsequentrecovery of a weapon from defendant following his arrest in July 2010. Supreme Courtinitially denied defendant's motion to sever the counts in the indictment but, following amistrial, defendant's motion in this regard was granted. The July 2010 weaponscharges—consisting of criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree (counts 9 and 10 of theindictment)—proceeded to trial first, and defendant was found guilty as charged.Sentencing was deferred pending trial on the balance of the indictment. After defendantwas acquitted of the remaining charges, he was sentenced as a second violent felonyoffender to 10
Defendant initially contends that the integrity of the grand jury proceeding wasimpaired because the People collectively presented evidence from the two separateincidents, impermissibly referred to defendant's parolee status, allowed the victim totestify in an inconsistent manner and failed to present exculpatory evidence. As part ofhis pretrial omnibus motion, defendant indeed sought to dismiss or reduce the indictmentpursuant to CPL article 210; [*2]however, aside from apassing reference to the People's failure to present exculpatory evidence, none of thearguments now advanced by defendant were included in the subject motion (seeCPL 210.20 [3]). Hence, defendant's present challenges to the integrity of the grand juryproceeding are largely unpreserved for our review (see CPL 470.05 [2]; People v Whitehead, 119AD3d 1080, 1081 [2014], lv denied 24 NY3d 1048 [2014]), and we discernno basis upon which to take corrective action in the interest of justice (see People v Green, 105 AD3d611, 612 [2013], lv denied 21 NY3d 1015 [2013]).
With respect to the issue of exculpatory evidence, "[t]he People generally enjoy widediscretion in presenting their case to the [g]rand [j]ury and are not obligated to search forevidence favorable to the defense or to present all evidence in their possession that isfavorable to the accused even though such information undeniably would allow the[g]rand [j]ury to make a more informed determination. . . . [Nor] do thePeople have the same obligation of disclosure at the [g]rand [j]ury stage as they have atthe trial stage" (People v Lancaster, 69 NY2d 20, 25-26 [1986], certdenied 480 US 922 [1987] [citations omitted]; see People v Thompson, 22 NY3d 687, 697-698 [2014]).Here, the exculpatory evidence cited by defendant "bore principally upon the victim'scredibility and, as such, was more appropriately reserved for presentation to the petit jurythan to the [g]rand [j]ury" (People v Ramjit, 203 AD2d 488, 490 [1994], lvdenied 84 NY2d 831 [1994]). Accordingly, Supreme Court did not err in denyingdefendant's motion in this regard.
To the extent that defendant's claim that he was denied due process because he wasshackled during the course of the suppression hearing has been preserved for our review,we find it to be lacking in merit. In Deck v Missouri (544 US 622 [2005]), theUnited States Supreme Court held that the US Constitution "forbid[s] [the] routine use ofvisible shackles during the guilt phase" of the trial and "permits a [s]tate to shackle acriminal defendant only in the presence of a special need" (id. at 626). Consistentwith that principle, the Court of Appeals has determined that, "as a matter of both federaland state constitutional law, '[a] defendant has the right to be free of visible shackles,unless there has been a case-specific, on-the-record finding of necessity' " (People v Best, 19 NY3d739, 743 [2012], quoting People v Clyde, 18 NY3d 145, 153 [2011], certdenied 566 US &mdash, 132 S Ct 1921 [2012]). Although this prohibition has beenextended to bench trials (see People v Best, 19 NY3d at 743-744; People vWhitehead, 119 AD3d at 1081-1082), we discern no basis upon which to afford acriminal defendant the same protection in the context of a pretrial hearing. In any event,even if we were persuaded that the protections outlined in Deck and Bestextended to pretrial hearings (see People v Ashline, 124 AD3d 1258, 1259 [4th Dept2015]), we are satisfied—upon our review of the hearing transcript—thatSupreme Court articulated a particularized basis for denying defendant's request that hisshackles be removed—namely, defendant's history of "numerous" violent feloniesand the fact that he was in "segregated secure confinement." Notably, Supreme Court didnot blindly acquiesce to the securing deputy's representation that defendant was a"security risk" but, rather, made its own independent assessment as to whether shacklingdefendant was required (compare People v Ashline, 124 AD3d at 1259).
Defendant next takes issue with Supreme Court's denial of his request to call thevictim as a witness at the Wade hearing. Where, as here, a defendant does notassert that the pretrial identification procedure was unduly suggestive, the decision togrant a defendant's request to call the complaining or identifying witness is a mattercommitted to the court's sound discretion (see People v Taylor, 80 NY2d 1, 15[1992]; People v Chipp, 75 NY2d 327, 339 [1990], cert denied 498 US833 [1990]; People v White,79 AD3d 1460, 1461 [2010], lv denied 17 NY3d 803 [2011]). Based uponour review of defendant's offer of proof, we do not find that Supreme Court abused itsdiscretion in denying defendant's request on this point. Moreover, "[a]ny improprieties[*3]in pretrial identification procedures can beinvestigated under the time-honored process of cross-examination" (People vChipp, 75 NY2d at 338 [internal quotation marks and citation omitted]). Defendant'sremaining challenges to the manner in which the suppression hearing was conductedand/or Supreme Court's substantive rulings with respect thereto, have been examined andfound to be lacking in merit. Similarly, even assuming that defendant's objections tocertain of Supreme Court's evidentiary rulings at trial have merit, we find any error in thisregard to be harmless in light of the overwhelming evidence of defendant's guilt.
Nor do we find merit to defendant's multifaceted ineffective assistance of counselclaim, which is addressed to trial counsel and the two other attorneys who sequentiallyrepresented defendant during the various pretrial proceedings. To the extent thatdefendant contends that pretrial counsel failed to properly investigate his case, facilitatehis appearance at the grand jury proceeding or engage in certain motion practice and,further, pressured him to take a plea, such claims implicate matters outside the recordand, as such, are properly the subject of a CPL article 440 motion (see People v Miner, 120 AD3d1449, 1450 [2014]; Peoplev McGowan, 117 AD3d 1202, 1202 [2014]; People v Davis, 114 AD3d 1003, 1003 [2014], lvdenied 23 NY3d 962 [2014]). As to the balance of defendant's claim, it is wellsettled that "[s]o long as the evidence, the law, and the circumstances of a particular case,viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation, the defendant will be deemed to have received theeffective assistance of counsel" (People v Brock, 107 AD3d 1025, 1028 [2013], lvdenied 21 NY3d 1072 [2013] [internal quotation marks and citations omitted]; see People v Toye, 107 AD3d1149, 1152 [2013], lv denied 22 NY3d 1091 [2014]; People v Wiltshire, 96 AD3d1227, 1228-1229 [2012], lv denied 22 NY3d 1204 [2014]). Here, theattorneys at issue—individually and collectively—filed a comprehensiveomnibus motion and otherwise engaged in appropriate pretrial motion practice,represented defendant's interests at the various suppression hearings, requestedadjournments, effectively cross-examined the People's witnesses, rendered appropriateobjections and made cogent opening and closing statements. Accordingly, despite anyisolated and discrete shortcomings in counsels' respective performances, we are satisfiedthat defendant received meaningful representation (see People v Robinson, 123 AD3d 1224, 1227-1228[2014]; People v Hughes,114 AD3d 1021, 1024-1025 [2014], lv denied 23 NY3d 1038 [2014]; compare People v Bush, 107AD3d 1302, 1303 [2013]).[FN1]
Finally, defendant asserts that he was deprived of a fair trial due to prosecutorialmisconduct in the context of the People's summation. As we acknowledged in People v Forbes (111 AD3d1154 [2013]), a case involving a somewhat similar summation,[FN2] "[s]ummations rarely areperfect. For that reason, we accord counsel a certain amount of leeway in this regard and[*4]recognize that not every improper comment made bythe prosecuting attorney during the course of closing arguments warrants reversal of theunderlying conviction. Rather, reversal is warranted [only] if the misconduct is such thatthe defendant suffered substantial prejudice, resulting in a denial of dueprocess—a determination that, in turn, hinges upon the severity and frequency ofthe conduct, whether the trial court took appropriate action to dilute the effect of theconduct and whether, from a review of the evidence, it can be said that the result wouldhave been the same absent such conduct" (id. at 1160 [internal quotation marksand citations omitted]).
Here, there is no question that the prosecutor made more than one undeniablyimproper comment during the course of his summation—including, "[D]efendanthas [a] right to a trial. A fair trial by jury, he got that, now he's guilty," and "Don't allow[defendant] to walk the streets with [a] loaded gun." This latter comment came on theheels of suggesting that the weapon that defendant was carrying at the time of his arrest"[m]aybe" could have been used to "kill somebody." The prosecutor further suggestedthat defendant attempted to flee when initially approached by the police on the day of hisarrest because he was in fact guilty, stating, "Like I said, are you running if you are notguilty?" Additionally, the prosecutor stated that in order "to find the defendant not guiltyyou've got to believe that every single one of these witnesses[ ] came in here, put theirhand[ ] on this [B]ible[ ] and they got up before you and lied. Flat out lied. That's whatyou have to believe[ ] to find [defendant] not guilty." The prosecutor further assured thejurors that "this isn't some conspiracy" and invited the jurors to consider whether variousmembers of the Albany Police Department and the State Police would "risk their wholecareers" just to implicate defendant in a crime.
Despite the similarities between the summation given in Forbes and thematter now before us, we do not believe that reversal is warranted here. Defense counselraised numerous objections during the course of the People's summation—many ofwhich were sustained—and Supreme Court both struck portions of the summationfrom the record and admonished the prosecutor in the presence of the jury. Additionally,although "the comment made by the prosecutor relative to what the jury would need tobelieve in order to find that defendant was not guilty arguably shifted the burdenof proof" (People v Forbes, 111 AD3d at 1159), the prosecutor here also made apoint of reminding the jury that "the burden is still fully on me as the representative ofthe People. It never shifts, it never goes to [defendant]." Further, while the conspiracyreference indeed was unwarranted and improper, the prosecutor here did not go one stepfarther and implicate the trial judge in such activity and, therefore, managed to stop shortof "pitting defendant against the very judge who had presided over the course of thetrial" (id.)—the precise conduct that we found so inexcusable inForbes. In short, upon reviewing the prosecutor's summation in its entirety, wefind it to be flawed but not fatal. Accordingly, after considering the comments made bythe prosecutor, the remedial actions undertaken by Supreme Court and the overwhelmingevidence of defendant's guilt, we are satisfied that the foregoing errors were harmless andthat reversal of defendant's conviction is unwarranted. Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to belacking in merit.
Peters, P.J., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant's relatedclaim—that Supreme Court erred in denying his motion for substitutecounsel—is equally unavailing. "Because defendant failed to proffer specificallegations of a seemingly serious request sufficient to warrant substitution of counseland was indeed afforded an opportunity to be heard, it cannot be said that Supreme Courtabused its discretion in denying his request" (People v Edwards, 96 AD3d 1089, 1092 [2012], lvdenied 19 NY3d 1102 [2012] [internal quotation marks and citation omitted]).
Footnote 2:This Court's decision inForbes was handed down in November 2013—long after defendant's May2011 trial.