| People v Leflore |
| 2017 NY Slip Op 07483 [154 AD3d 1164] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1](October 26, 2017)
| The People of the State of New York,Respondent, v Shamir Leflore, Appellant. |
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Connolly, J.), rendered October 1,2013 in Albany County, (1) upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree, and (2) convicting defendant upon his plea ofguilty of the crime of criminal possession of weapon in the second degree.
Following a jury trial, defendant was convicted of criminal possession of a weapon in thesecond degree as charged in an indictment (hereinafter the first indictment) stemming from anincident on June 17, 2012 in which he possessed a loaded .32 caliber pistol and threatened awoman with it outside of her home. Before the trial on the first indictment, defendant wascharged in a separate indictment (hereinafter the second indictment) with the crimes of criminalpossession of a weapon in the second degree and reckless endangerment in the second degreefollowing an incident in which he fired bullets from a different loaded firearm into a home. Afterthe verdict on the first indictment but prior to sentencing, defendant accepted a negotiatedagreement related to both the verdict and second indictment pursuant to which he pleaded guiltyto criminal possession of a weapon in the second degree as charged in the second indictment. Theagreement included waivers of appeal as to both convictions. Thereafter, consistent with theterms of the agreement, defendant was sentenced, as a second violent felony offender, to twoconcurrent prison terms of 13 years, followed by five years of postrelease supervision. Defendantnow appeals.
We affirm. Initially, we agree with defendant's contention that the waivers of appeal are[*2]invalid. While a defendant may waive his or her right toappeal from a jury verdict, and may do so in conjunction with a guilty plea and appeal waiver toan unrelated indictment (see People vWolz, 112 AD3d 1150, 1151-1152 [2013], lv denied 23 NY3d 1026 [2014]; People v Morales, 68 AD3d 1356,1356-1357 [2009], lv denied 14 NY3d 803 [2010]), the record here fails to reflect thatdefendant had a "full appreciation of the consequences of such waiver[s]" so as to establish thatthey were knowing, voluntary and intelligent (People v Bradshaw, 18 NY3d 257, 264 [2011] [internal quotationmarks and citation omitted]; see Peoplev Lopez, 6 NY3d 248, 256-257 [2006]; compare People v Sanders, 25 NY3d 337, 339-341 [2015]). To thatend, while Supreme Court made clear during the allocution that the waivers of appeal applied toboth the jury verdict and the guilty plea, the court alternated between the two matters, renderingthe distinctions between them unclear and confusing (compare People v Wolz, 112 AD3dat 1151-1152). Further, the court did not explain the nature of the appellate process ordefendant's appeal rights, and merely elicited that defendant had discussed "this matter" withcounsel (compare id.; People vCipriani, 61 AD3d 1214, 1216 [2009], lv denied 13 NY3d 795 [2009]). Withregard to the waiver of appeal from the jury verdict, the record does not reflect that defendantwas advised of or understood any of the appellate issues that could be raised following a trial.During the allocution with regard to the second indictment, the court failed to elicit anunqualified appeal waiver or to adequately distinguish the separate and distinct nature of theappeal waiver from the trial-related rights that defendant was automatically relinquishing by hisguilty plea (see People v Lopez, 6 NY3d at 256; compare People v Wolz, 112AD3d at 1151-1152; People v Morales, 68 AD3d at 1357). While defendant apparentlysigned separate, identical written waivers of appeal as to each matter, the court did not elicit thathe had read them or was aware of their contents, or that he understood or had discussed themwith counsel (see People v Bradshaw, 18 NY3d at 261-262, 265-267; People vCallahan, 80 NY2d 273, 283 [1992]; People v Woods, 147 AD3d 1156, 1156 [2017], lv denied29 NY3d 1089 [2017]; People vLarock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]; compare People v Ramos, 7 NY3d737, 738 [2006]).
Regarding defendant's challenges to the voluntariness of his plea and the factual sufficiencyof the plea allocution, they were not preserved by an appropriate postallocution motion towithdraw his plea (see CPL 220.60 [3]; People v Woods, 147 AD3d at1156-1157). Contrary to his claim, the record does not reflect that he made any statements duringthe colloquy that triggered the narrow exception to the preservation requirement (see People v Williams, 27 NY3d212, 219-220 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant further contends that the jury verdict convicting him of criminal possession of aweapon in the second degree is not supported by legally sufficient evidence and is against theweight of the evidence.[FN*]As relevant here, a person is guilty of criminal possession of a weapon in the second degree whenhe or she possesses a loaded firearm outside the presence of his or her home or place of business(see Penal Law § 265.03 [3]). The victim testified that at around 1:27 a.m.on June 17, 2012, while socializing at home with family and friends, defendant, who shedescribed to police and later identified, unexpectedly appeared in front of her home. When shedirected him to leave, he pulled out a gun from his shirt, pointed it at her chest and threatened toshoot her. She called 911 and followed defendant down the street and observed him toss the gununder a car, remaining on her cell phone with the police dispatcher until police [*3]arrived shortly thereafter. The victim pointed out where the gun hadbeen thrown, and police retrieved the gun and determined that it was loaded with two rounds ofammunition. Subsequent tests established that it was operable (see Penal Law§ 265.00 [15]). Although DNA evidence failed to connect defendant to the gun,viewing the evidence in the light most favorable to the People, we find that legally sufficientevidence was adduced proving the elements of this crime beyond a reasonable doubt, includingdefendant's actual possession of the loaded gun (see Penal Law § 10.00 [8];People v Ramos, 19 NY3d 133,136 [2012]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant also challenges the victim's credibility because she testified under subpoena, andhe argues that her account that she followed defendant down the street after he threatened herwith a gun is inconceivable. However, we do not agree that her reluctance to testify in thisprosecution or her proactive pursuit of defendant after he threatened her, during which sheremained in phone contact with police and relayed what was happening in real time, rendered herunworthy of belief. The jury's determination to credit her account, which was consistent andbelievable, is entitled to great deference (see People v Place, 152 AD3d 976, 979 [2017]; People v Cruz, 152 AD3d 822,823 [2017]; People v Worthington,150 AD3d 1399, 1402 [2017], lv denied 29 NY3d 1095 [2017]). Reviewing theevidence in a neutral light and deferring to the jury's resolution of credibility issues, we aresatisfied that the verdict is supported by the weight of the credible evidence (see People v Gray, 151 AD3d1470, 1475 [2017], lv denied 30 NY3d 949 [Sept. 28, 2017]).
Next, defendant argues that Supreme Court erred in denying his motion to suppress his oralstatements to a police detective after he was apprehended, with regard to the first indictment,which were recorded on video. Defendant contends that he invoked his right to counsel and toremain silent during that questioning, which presents "mixed question[s] of law and fact thatmust be determined with reference to the circumstances surrounding the request including thedefendant's demeanor, manner of expression and the particular words found to have been used bythe defendant" (People v Henry, 133AD3d 1085, 1086 [2015] [internal quotation marks and citation omitted]). As relevant here,the right to counsel indelibly attaches when "an uncharged individual . . . , while incustody, has requested a lawyer in that matter [and, o]nce a defendant unequivocally requestscounsel, all police questioning must cease" (People v Slocum, 133 AD3d 972, 974 [2015] [internal quotationmarks and citations omitted], appeal dismissed 29 NY3d 954 [2017]; see People vGrice, 100 NY2d 318, 320-321 [2003]).
As Supreme Court found and the People do not dispute, defendant, handcuffed in a policeinterview room, was in custody (seePeople v Paulman, 5 NY3d 122, 129 [2005]). The video recording of the interrogationreflects that, after defendant was read Miranda warnings, he indicated that he understoodthem and then questioned the detective about why he had not received an earlier advisement ofhis rights and why he had been taken into custody, and the detective told him that he would needto cooperate in order to learn what was going on. At that point, defendant stated, "I will get alawyer. As a matter of fact, I don't wanna talk no more" and then asked, "Can I please get a phonecall?" Under these circumstances, defendant's statements were not "merely a forewarning of apossible, contingent desire to confer with counsel [but,] rather[, were] an unequivocal statementof [his] present desire to do so" (People v Slocum, 133 AD3d at 975 [internal quotationmarks and citation omitted]). That is, defendant made clear his desire to speak with an attorney torepresent him and to cease questioning, thereby unequivocally asserting his right to counsel andto remain silent (see People v Grice, 100 NY2d at 321; People v Henry, 133AD3d at 1086-1087). Questioning should have stopped, and any waiver of his right to counselthereafter was ineffective in the absence of counsel (see People v Slocum, 133 AD3d at974; People v Jemmott, 116 AD3d1244, 1246 [2014]; People v Dashnaw, 85 AD3d [*4]1389, 1391 [2011], lv denied 17 NY3d 815 [2011]). Thus,we agree with defendant that the court erred in denying his motion to suppress hisstatements.
However, we find that the erroneous admission of defendant's statements was harmless errorin that, considering "the totality of the evidence, there is no reasonable possibility that the erroraffected the jury's verdict" (People vLopez, 16 NY3d 375, 386-387 [2011] [internal quotation marks and citation omitted];accord People v Green, 141 AD3d746, 747 [2016]). Defendant's inadmissible statements consisted of his denial that he had agun the night in question or that he had ever touched a gun, his claim that he had no problemsthat night and no idea what had happened, and that he was not at a party at the victim's house.Defendant asserted that he and his girlfriend had simply been walking by the area, on their way toa store and then another party, when police apprehended him. As the only disputed issue waswhether defendant possessed the gun on the street and he made no admissions in that regard, wefind that there is no reasonable possibility that his exculpatory statements contributed to theverdict, and reversal is not required (compare People v Slocum, 133 AD3d at 977).
Finally, we are unpersuaded by the claims raised in defendant's pro se brief that he wasdeprived of the effective assistance of counsel. A review of the record discloses that defensecounsel made appropriate pretrial motions, presented a cogent albeit unsuccessful defense,effectively cross-examined witnesses and raised relevant objections at trial. We find that "theevidence, the law, and the circumstances of [this] case, viewed in totality and as of the time ofthe representation, reveal that [defense counsel] provided meaningful representation" (Peoplev Baldi, 54 NY2d 137, 147 [1981]; accord People v Speaks, 28 NY3d 990, 992 [2016]; People v Kalina, 149 AD3d 1264,1267 [2017], lv denied 29 NY3d 1092 [2017]). To the extent that defendant relies, inpart, on matters that are outside the record on appeal, they are more appropriately raised in amotion pursuant to CPL article 440 (seePeople v Perkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126[2016]). Defendant's remaining claims have been considered and determined to lack merit.
McCarthy, J.P., Garry, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Contrary to the People's claim,we find that defendant adequately preserved his challenge to the legal sufficiency of the evidenceby moving, at the close of proof, for a trial order of dismissal on the specific grounds now argued(see CPL 290.10 [1]; People vFinch, 23 NY3d 408, 423-424 [2014]).