| People v Boone |
| 2017 NY Slip Op 00097 [146 AD3d 458] |
| January 10, 2017 |
| Appellate Division, First Department |
[*1](January 10, 2017)
| The People of the State of New York,Respondent, v Deron Boone, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova ofcounsel), for appellant.
Deron Boone, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Diane N. Princ of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July14, 2011, convicting defendant, after a jury trial, of assault in the third degree, andsentencing him to a term of nine months, and judgment, same court (Richard D.Carruthers, J., at expert witness application; Juan M. Merchan, J., at jury trial andsentencing), rendered November 6, 2013, as amended November 21, 2013, convictingdefendant of criminal possession of a weapon in the second degree, and sentencing him,as a second felony offender, to a term of 14 years, unanimously affirmed.
We first address the motion court's denial of defendant's application to admit experttestimony with respect to false confessions. We agree with the motion court's conclusion,after reargument, that defendant was entitled neither to present the testimony of a falseconfessions expert at trial nor to test the issue at a Frye hearing. However, ouragreement with this result is based on a different interpretation of People v Bedessie (19 NY3d147, 161 [2012]).[FN*] It is important to clarify ourinterpretation of Bedessie's scope because of the evolving law on falseconfessions.
In addressing the admissibility of expert testimony on false confessions inBedessie, the Court of Appeals explained that an expert could testify about eitherdispositional or situational factors (see Bedessie, 19 NY3d at 161). Dispositionalfactors arise where a defendant's personality or psychological makeup could make him orher particularly susceptible to confessing falsely (id. at 159). Situational factorsmay be present when the interrogation is conducted in a way that might induce adefendant to make a false confession (id.). Regardless of whether the expertwould testify about disposititonal or situational factors, the Court of Appeals emphasizedthat a proffer must show that the expert's testimony was "relevant to the defendant andinterrogation before the court" (id. at 161). Since the defendant failed to showthat the proposed expert testimony in Bedessie was relevant to the "defendantor her interrogation," the Court of Appeals affirmed the denial of her application(id. at 149 [emphasis added]).
In this case, defendant moved to admit the testimony of an expert on falseconfessions. [*2]The motion court granted the motion tothe extent of ordering a Frye hearing.
Defense counsel then advised the People that she would only introduce evidence asto situational factors, not dispositional factors. The People moved to reargue the court'sorder. The motion court granted reargument, and, upon reargument, denied defendant'smotion, and refused to either admit the evidence or to hold a Frye hearing. It heldthat this result flowed from Bedessie, which it held required that a proposedexpert's testimony must address both dispositional and situational factors in order to beadmissible.
We do not interpret Bedessie this way. In Bedessie, the Court ofAppeals rejected the defendant's proposed expert testimony because it was not specific tothe case before it; the court did not mandate that the proposed expert must address bothdispositional and situational factors.
As this Court has previously held, a motion to admit expert testimony on falseconfessions is properly denied when "defendant's motion papers, which contained noexpert affidavit, did not establish that the proposed expert's testimony would be relevantto the defendant and interrogation before the court" (People v Roman, 125 AD3d 515, 515 [1st Dept 2015][internal quotation marks omitted], lv denied 26 NY3d 1091 [2015]). In this case,defendant has not shown that the proposed expert testimony would be addressed to thecircumstances of this defendant's interrogation. Therefore, we agree with the denial ofdefendant's motion.
The trial court properly exercised its discretion in denying defendant's request toimpeach the interrogating detective by way of his Facebook posts that assertedlydemonstrated his implicit bias against defendant. These posts had no connection orapplicability to defendant or any racial or economic group to which he belonged.Defendant's interpretation of the alleged subtexts of these posts was speculative and tooremote from the issue of bias to be admissible (see People v Thomas, 46 NY2d100, 105-106 [1978], appeal dismissed 444 US 891 [1979]). Accordingly, therewas no violation of defendant's right to cross-examine witnesses.
The court, which thoroughly instructed the jury on the issue of the voluntariness ofdefendant's confession, did not err in refusing to include a charge on attenuation of aconfession from a previous one that lacked Miranda warnings (see People v Rabady, 28 AD3d794, 795 [2d Dept 2006], lv denied 7 NY3d 761 [2006]; People vSmith, 209 AD2d 1005, 1006 [4th Dept 1994], lv denied 85 NY2d 866[1995]). Regardless of whether an attenuation instruction might be appropriate in somecases, it was not warranted on the facts of this case, and its absence was harmless in anyevent.
The court's interested witness charge, which followed the Criminal Jury Instructions,was not constitutionally deficient (see People v Davis, 127 AD3d 614, 615 [1st Dept 2015],lv denied 26 NY3d 928 [2015]; People v Blake, 39 AD3d 402, 403 [1st Dept 2007], lvdenied 9 NY3d 873 [2007]). With appropriate limitations, as here, a defendant'sparticular interest in the outcome of a case is "a matter properly to be suggested by thecourt to the jury" (Reagan v United States, 157 US 301, 305 [1895]).
Defendant's retrial on the weapon possession count following a mistrial due to adeadlocked jury did not violate his federal or state constitutional rights against doublejeopardy, regardless of the legal sufficiency of the evidence at the first trial (seeRichardson v United States, 468 US 317, 323-326 [1984]). In any event, theevidence at the first trial was legally sufficient.
We reject defendant's argument that the verdict at his first trial, convicting him ofthird-degree assault, was against the weight of the evidence (see People v Chiddick, 8 NY3d445, 447 [2007]).
Defendant's pro se ineffective assistance of counsel claims are unreviewable ondirect appeal. In the alternative, to the extent the existing record permits review, we findthat defendant [*3]received effective assistance under thestate and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; Strickland v Washington, 466 US 668 [1984]). Defendant's remainingpro se claims are without merit. Concur—Acosta, J.P., Richter, Mazzarelli,Kapnick and Gesmer, JJ.
Footnote *:When a trial or motioncourt's decision involves a "single multipronged legal ruling," an appellate court mayaffirm on an alternate theory of the multipronged analysis (People v Garrett, 23 NY3d878, 885 n 2 [2014]). Here, we analyze defendant's application underBedessie, just as the motion court did, but, we affirm its decision based on adifferent reading of Bedessie.