| People v Palmer |
| 2018 NY Slip Op 03391 [161 AD3d 1291] |
| May 10, 2018 |
| Appellate Division, Third Department |
[*1](May 10, 2018)
| The People of the State of New York,Appellant, v Russell Palmer, Also Known as Goo, Also Known as Unc,Respondent. |
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered June 22, 2015, upon a verdict convicting defendant of the crimes of murder in thesecond degree, conspiracy in the second degree, criminal possession of a weapon in the seconddegree (two counts) and criminal possession of a controlled substance in the second degree, and(2) by permission, from an order of said court, entered August 2, 2016, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged by superseding indictment with murder in the second degree,conspiracy in the second degree, two counts of criminal possession of a weapon in the seconddegree, criminal possession of a controlled substance in the second degree and criminalpossession of a controlled substance in the third degree stemming from the killing of SylvesterScott (hereinafter the victim) in the City of Albany. Following several hearings and a joint jurytrial with the codefendant, defendant was convicted of all charges except criminal possession of acontrolled substance in the third degree.[FN1] County Court sentenced defendant, as a secondfelony offender, to an aggregate prison term of 39 years to life followed by five years ofpostrelease supervision. Thereafter, defendant made a pro se motion pursuant to CPL 440.10 to[*2]vacate the judgment of conviction, which the court deniedwithout a hearing. Defendant now appeals from the judgment of conviction and, by permission,from the denial of his CPL article 440 motion. We affirm.
Initially, defendant's arguments as to severance and a reverse Batson ruling wereaddressed in the appeal of the codefendant (People v Murray, 155 AD3d 1106, 1107-1110 [2017]). Afterconsidering defendant's arguments on these issues, we are unpersuaded that any reason has beenset forth such that these issues should be decided differently in this appeal.
County Court properly denied the portion of defendant's pretrial omnibus motion in which hemoved for an order suppressing any evidence acquired by means of an eavesdropping warrantdue to lack of standing. In support of his motion, defendant's attorney submitted an affirmationcontending that, although the eavesdropping warrant authorized the interception and recording ofcommunications occurring over a telephone number assigned to someone other than defendant,he "has an expectation of privacy in any and all telephone conversation[s] that he may have madethat may have been recorded by law enforcement that occurred prior to the time that aneavesdropping warrant was obtained against his phone line." As defendant did not submit swornallegations of fact that he was a sender, receiver or participant in the subject phone conversations,he failed to demonstrate that he was an aggrieved person with standing to challenge theeavesdropping warrant (see CPLR 4506 [2]; cf. People v Jeanty, 268 AD2d 675,678-679 [2000], lv denied 94 NY2d 949 [2000]). In any event, even if defendant hadstanding, he is not entitled to a hearing to challenge the legality of the eavesdropping warrantbecause this Court already found, on the codefendant's direct appeal, that the warrant application"complied with the requirements of CPL article 700" (People v Murray, 155 AD3d at1107-1108).
We disagree with defendant's contention that County Court erred in failing to suppress astatement given subsequent to his illegal arrest. Evidence obtained through illegal police action isnot automatically subject to exclusion (see People v Bradford, 15 NY3d 329, 333 [2010]; People v Stahl, 141 AD3d 962,964 [2016], lv denied 28 NY3d 1127 [2016], cert denied 583 US &mdash, 138 SCt 222 [2017]). "The application of the exclusionary rule requires a commonsense appraisal ofwhether the suppression of the challenged evidence will remove in the future the motive forsimilar improper police conduct" (People v Rogers, 52 NY2d 527, 535 [1981], certdenied 454 US 898 [1981]; see People v John BB., 81 AD2d 188, 192 [1981],affd 56 NY2d 482 [1982], cert denied 459 US 1010 [1982]). "Although theprosecution will be denied the poisoned fruit from the poisoned tree, at some point the chain ofcausation leading from the illegal activity to the challenged evidence may become so attenuatedthat the taint of the original illegality is removed" (People v Rogers, 52 NY2d at 532-533[internal quotation marks and citations omitted]; see People v Richardson, 9 AD3d 783, 788 [2004], lvdenied 3 NY3d 680 [2004]). When determining whether a confession or admission wasproduced by exploitation of an illegal arrest, three factors are relevant: "(1) [t]he temporalproximity of the arrest and [statement]; (2) the presence of intervening circumstances[;] and (3)the purpose and flagrancy of the official misconduct" (People v Martinez, 37 NY2d 662,666 [1975] [internal quotation marks and citation omitted]; see People v Vaughn, 275AD2d 484, 488 [2000], lv denied 96 NY2d 788 [2001]).
We find that the proof in this case is sufficient to support the finding of attenuation.Defendant was arrested, after a traffic stop, by a state trooper at approximately 11:00 a.m. at ahotel and brought to the City of Albany Police Department. At approximately 3:45 p.m.,defendant was administered his Miranda rights and questioned by two police detectives,neither of whom arrested defendant or were even present at the hotel when defendant wasarrested. Additionally, as County Court held, "[a]lso significant is the fact that though theevidence at the [*3]hearing did not adequately demonstrate achain of information necessary to find probable cause pursuant to the fellow officer rule, theofficers at the Albany Police Department had in their possession sufficient evidence to establishprobable cause for [defendant's] arrest." This holding by the court, as well as a thorough reviewof the record, evinces that "there is no demonstrable proof in the record that the initial detentionof defendant was motivated by bad faith or a nefarious police purpose" (People vBradford, 15 NY3d at 334). We see no reason to disturb County Court's determinationinasmuch as "sufficient evidence that the required nexus between the detention and thestatements is absent, there would be no deterrence and therefore no reason to invoke theexclusionary rule" (People v Rogers, 52 NY2d at 535).
We are similarly unpersuaded by defendant's challenge to County Court's denial of hisfor-cause challenge to prospective juror No. 9 from the second voir dire panel due to an impliedbias based upon an employment relationship between the prospective juror's mother and aprosecution witness. "A challenge for cause as to a prospective juror is properly raised if he orshe has a 'relationship with a potential witness of such a nature that it is likely to preclude him orher from rendering an impartial verdict' " (People v Stanford, 130 AD3d 1306, 1308 [2015] [bracketsomitted], lv denied 26 NY3d 1043 [2015], quoting CPL 270.20 [1] [c]). Not allrelationships between a prospective juror and a witness require disqualification for cause, andtrial courts must look at many factors surrounding the relationship at issue, such as the frequencyof the contact and the nature of the relationship as personal and/or professional (see People v Greenfield, 112 AD3d1226, 1228-1229 [2013], lv denied 23 NY3d 1037 [2014]). Here, the record islimited because the potential juror's statements regarding her relationship were off therecord.[FN2] However,when addressing defendant's challenge for cause, the court stated that the prospective juror'smother currently worked for the witness, a doctor, and that the prospective juror knew the doctor.The court also stated that the potential juror "indicated she would be able to be fully fair andimpartial, it wouldn't impact on her ability to do that." On this record, and stressing that theprospective juror indicated that she could be fair and impartial, we do not find this relationship tobe "so close as to require disqualification" (People v Stanford, 130 AD3d at 1308-1309;see People v Molano, 70 AD3d1172, 1174 [2010], lv denied 15 NY3d 776 [2010]).
Nor do we find merit to defendant's challenge to County Court's Molineux ruling,which allowed the People to inquire into defendant's involvement in a shooting that occurred twodays prior to the victim's death. Evidence surrounding the prior shooting was not admitted as aMolineux exception, but constitutes additional evidence of the charged crime ofconspiracy as evidence of an overt act committed by defendant in furtherance of the conspiracy tocommit murder (see Penal Law § 105.15; People v Cochran, 140 AD3d1198, 1200-1201 [2016], lv denied 28 NY3d 970 [2016]; People v Morales,309 AD2d 1065, 1066 [2003], lv denied 1 NY3d 576 [2003]). Notably, the indictmentspecified that the conspiracy to commit murder began on or about December 20, 2013 untilDecember 23, 2013; accordingly, the court did not err in permitting inquiry into the December21, 2013 shooting (see People v Murray, 155 AD3d at 1111; People v Portis, 129 AD3d 1300,1302-1303 [2015], lv denied 17 NY3d 1091 [2015]).
We turn next to defendant's assertion that County Court erred in denying without a [*4]hearing his pro se CPL article 440 motion, alleging ineffectiveassistance of counsel.[FN3]Defendant contends that trial counsel was ineffective in failing to develop a valid suppressionclaim by not calling Patrick Hogan, the investigator who drafted the felony complaints, as awitness at the preliminary hearing. We see no merit to this contention as Hogan testified at lengthduring the suppression hearing, at which defendant was represented by counsel who thoroughlycross-examined Hogan, as well as the People's other witnesses. Finally, defendant's allegationsregarding what he believes Hogan would have testified to at the preliminary hearing are purelyspeculative and not supported by the record (see CPL 440.30 [4] [d]; People vRossney, 186 AD2d 926, 926 [1992], lv denied 81 NY2d 794 [1993]). We haveconsidered defendant's remaining arguments and find them to be without merit.
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:The codefendant was convictedof the same charges.
Footnote 2:County Court's recollection ofthe challenged juror's off-the-record statement is sufficient for review purposes as defensecounsel did not question or contradict the court's recollection (see People v Madison, 230AD2d 807, 808 [1996], lv denied 89 NY2d 925 [1996]).
Footnote 3:We find the second argumentraised in defendant's CPL article 440 motion to be abandoned on appeal (cf. People v Blume, 92 AD3d1025, 1027-1028 [2012], lv denied 19 NY3d 957 [2012]).