| People v Houze |
| 2019 NY Slip Op 53938 [177 AD3d 1184] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Houze, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May18, 2017 in Albany County, upon a verdict convicting defendant of the crimes ofburglary in the second degree, criminal possession of a weapon in the third degree andcriminal possession of a controlled substance in the seventh degree.
On January 25, 2017, while out running a quick errand, Victor Cain noticed asuspicious looking man—later identified as defendant—walking near acommunity garden in his neighborhood, carrying two large duffle bags and wearing ablack leather jacket. After running his errand, Cain's wife informed him that the home ofthe victim—Cain's neighbor—had been broken into. Cain briefly met withthe victim to show the victim where defendant had been walking, and then proceeded tosee if he could locate defendant. Cain found defendant a few blocks away boarding a busand holding only one duffle bag. Cain followed the bus and contacted the victim to meethim at the location where defendant exited the bus. Once the victim arrived, he and Cainconfronted defendant, who pulled out what appeared to be a gun, causing Cain and thevictim to retreat to their vehicles. While the victim drove home, Cain continued toobserve defendant enter a nearby home. On his way to report the incident to police, Cainflagged down two detectives and explained that defendant had just brandished a gun.The detectives followed Cain to where defendant was last seen, and, when they arrived,defendant was leaving the apartment without any duffle bags. Cain then told thedetectives that defendant was the man who brandished the weapon, and defendant wasthen arrested and taken into custody. While arresting defendant, police recovered, amongother things, an electronic stun gun, cocaine and some of the proceeds of theburglary.
Defendant was subsequently indicted for the crimes of burglary in the second degree,criminal possession of a weapon in the third degree and criminal possession of acontrolled substance in the seventh degree. After a jury trial, defendant was convicted ascharged and was thereafter sentenced, as a persistent violent felony offender, to a prisonterm of 22 years to life on the burglary in the second degree conviction and to lesserconcurrent prison terms on the other two convictions. Defendant appeals, and weaffirm.
We turn first to defendant's contention that Supreme Court erred in denying hismotion to preclude identification testimony pursuant to CPL 710.30 (2) because thePeople failed to provide him with sufficient notice of the identification. "CPL 710.30requires the People to serve notice upon the defendant of their intention to introduce'testimony regarding an observation of the defendant either at the time or place of thecommission of the offense or upon some other occasion relevant to the case, to be givenby a witness who has previously identified him [or her] as such' " (People v Anderson, 149 AD3d1407, 1410 [2017], lv denied 30 NY3d 947 [2017], quoting CPL 710.30 [1][b]). "The notice requirement applies to police-arranged identifications, and its purpose isto allow the defense an opportunity to inquire into whether misleading or suggestiveprocedures were used that could affect the accuracy of a later identification in court" (People v Russell, 167 AD3d1326, 1327 [2018] [internal quotation marks and citations omitted], lvdenied 33 NY3d 981 [2019]; see People v Boyer, 6 NY3d 427, 431 [2006]).
Here, the People, at arraignment, served defendant with a written notice stating theirintention to offer at trial, among other things, evidence of an identification of defendantas the person who committed the crimes "by a witness who ha[d] previously identified[him] as such." The notice did not specify what type of identification procedure hadtaken place and, as for the date and place of the identification, the notice stated, "Seeattached." The attached supplemental report provided the details of the identification,including the date and time of the identification. Defendant moved to preclude theidentification testimony and a Wade hearing was held. At the hearing, TimothyHaggerty, a police detective, testified that he and another detective were on their way toget coffee when Cain, who was known to Haggerty, flagged them down and informedthem that he was just threatened by a man with a gun. According to Haggerty, Cain madeno mention of the burglary at this time and Haggerty and the other detective followedhim to where the man was last seen. As Haggerty, the other detective and Cainapproached the home, defendant was exiting the apartment and Cain, withoutprovocation, pointed at defendant and identified him as the man who pulled the gun onhim stating, "There he is. He's right there." Haggerty testified that he then arresteddefendant. Following the hearing, Supreme Court denied defendant's motion.
Inasmuch as Cain's identification of defendant "occurred spontaneously without anypolice involvement, CPL 710.30 notice of such identification was not required" (People v Coker, 121 AD3d1305, 1307 [2014], lv denied 26 NY3d 927 [2015]; see People v Rawlinson, 170AD3d 1425, 1428-1429 [2019], lv denied 33 NY3d 1107 [2019]).Additionally, "notice of an eyewitness identification is not required 'where the eyewitnesshas not previously made any out-of-court, police-initiated identification of the defendantin connection with that crime' " (People v Anderson, 149 AD3d at1410-1411, quoting People vButler, 16 AD3d 915, 916 [2005], lv denied 5 NY3d 786 [2005]).According to Haggerty's testimony, at the time that Cain identified defendant, it was onlyin connection with defendant threatening him with a gun, not the burglary, as theburglary had not even been reported yet; thus, CPL 710.30 notice was not required.Therefore, Supreme Court properly denied defendant's motion to preclude Cain'sidentification testimony.
Defendant also challenges Supreme Court's Sandoval ruling. However,because defendant failed to object to the court's ruling prior to the close of theSandoval hearing, this issue is not preserved for our review (see People v Nunez, 160 AD3d1225, 1225 [2018]; Peoplev Stacconi, 151 AD3d 1395, 1397 [2017]). Defendant's contention that the courterred in allowing the People to amend the indictment prior to jury selection is similarlyunpreserved inasmuch as defendant did not oppose, and in fact consented to, the People'smotion to amend (see People vLamont, 125 AD3d 1106, 1106 [2015], lv denied 26 NY3d 969 [2015];People v Wimberly, 86AD3d 806, 807 [2011], lv denied 18 NY3d 863 [2011]).[FN*]
Defendant also claims that reversal is required due to the People's failure to turn overRosario material, which also constituted a Brady violation. Specifically,defendant argues that the People failed to disclose (1) text messages between two policeofficers, (2) a call ticket, which noted the times that the officers arrived and left thevictim's residence, and (3) initial notes made by Kristin Pulcher, a police officer involvedin the investigation. Although the People concede that they failed to turn these items overand that said failure is a Rosario violation, they point out that defendant neverrequested an adverse inference charge or any other sanction during trial and thatdefendant was not prejudiced by the violations. As relevant here, "[a] Rosarioviolation will lead to reversal only if there is a reasonable possibility that nondisclosurecontributed to the verdict" (People v Seecoomar, 174 AD3d 1154, 1158 [2019][internal quotation marks and citations omitted]). Additionally, "[t]o establish aBrady violation, a defendant must show that (1) the evidence is favorable to thedefendant because it is either exculpatory or impeaching in nature; (2) the evidence wassuppressed by the prosecution; and (3) prejudice arose because the suppressed evidencewas material" (People vFuentes, 12 NY3d 259, 263 [2009]; see People v Auleta, 82 AD3d 1417, 1420 [2011], lvdenied 17 NY3d 813 [2011]).
As to the text messages between the two police officers, both officers testified at trialand explained that pictures were sent from one officer to another without anyaccompanying text. At trial, defendant conceded that the People had disclosed thepictures early on in discovery. As such, defendant was not prejudiced because he alreadyhad the relevant information. As to the nondisclosure of Pulcher's initial notes, testimonyat trial established that the notes were memorialized into her incident report. Defendantwas in receipt of the incident report and extensively cross-examined Pulcher about thecontents of that report; accordingly, defendant was not prejudiced by this nondisclosure(see People v Olson, 126AD3d 1139, 1141 [2015], lv denied 25 NY3d 1169 [2015]). As to the callticket, which noted the times that officers arrived and left the victim's residence,defendant fails to articulate how this nondisclosure prejudiced him. In fact, the timing ofthe officers' arrival and departure from the victim's residence is completely irrelevant todefendant's alibi, as he had already been arrested by the time the officers searched thevictim's home. Under these circumstances, the People's admitted nondisclosure ofRosario materials does not require reversal because there is not a reasonablepossibility that the nondisclosure contributed to the verdict (see People v Auleta,82 AD3d at 1421; People vAvery, 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]).Likewise, because no prejudice arose from the nondisclosure nor does the recordestablish that the nondisclosed materials were favorable to defendant, we do not find thatthe Rosario violations constitute Brady violations (see People v Capers, 129AD3d 1313, 1316 [2015], lv denied 27 NY3d 994 [2016]; People vAuleta, 82 AD3d at 1421).
Defendant failed to preserve a challenge to Supreme Court's jury charge, as he madeno objections to the charge at trial (see People v Sabines, 121 AD3d 1409, 1411-1412 [2014],lv denied 25 NY3d 1171 [2015]). Similarly, defendant's allegations ofprosecutorial misconduct are largely unpreserved inasmuch as he failed to make anyspecific objections to the majority of the challenged conduct (see People v Sostre, 172 AD3d1623, 1626-1627 [2019], lv denied 34 NY3d 938 [2019]). As to thosecomments by the prosecutor during the People's summation that defendant preserved bymaking an objection, we find that these comments were fair commentary on the evidenceand the reasonable inferences to be drawn therefrom (see id. at 1627; People v Williams, 163 AD3d1160, 1165 [2018], lv denied 32 NY3d 1179 [2019]).
We find that defendant received meaningful representation. It is well established that"[a] claimed violation of the constitutional right to the effective assistance of counsel willnot survive judicial scrutiny so long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation" (People v Pitt, 170 AD3d 1282, 1286 [2019] [internalquotation marks and citations omitted], lv denied 33 NY3d 1072 [2019]; seePeople v Sostre, 172 AD3d at 1627). To succeed on a claim of ineffective assistanceof counsel, the defendant must show "the absence of strategic or other legitimateexplanations for counsel's failure" (People v Rivera, 71 NY2d 705, 709 [1988];see People v Umana, 143AD3d 1174, 1175 [2016], lv denied 29 NY3d 1037 [2017]). Contrary todefendant's contention, the record as a whole reveals that defense counsel providedmeaningful representation despite the fact that he failed to object to the allegedprosecutorial misconduct, the admission of hearsay testimony and the People's leadingquestions, because the vast majority of those objections would have been unsuccessful(see People v Every, 146AD3d 1157, 1166 [2017], affd 29 NY3d 1103 [2017]; People v Sabines, 121 AD3d1409, 1412 [2014], lv denied 25 NY3d 1171 [2015]). Moreover, the recordreveals that defense counsel "pursued a cogent trial strategy of challenging the credibilityof the only eyewitness, made appropriate motions, vigorously cross-examined thePeople's witnesses and advanced [a] reasonable [alibi] defense[ ] in arguing that"defendant was home with his sister during the burglary (People v Every, 146AD3d at 1166; see People v Sostre, 172 AD3d at 1627).
Lastly, defendant challenges the imposed sentence as harsh and excessive, allegingthat Supreme Court impermissibly penalized him for exercising his right to trial.Defendant, however, failed to preserve this challenge, inasmuch as he did not object atsentencing to the disparity between the pretrial plea offer and the sentence imposed bythe court (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Haskins, 121 AD3d1181, 1185 [2014], lv denied 24 NY3d 1120 [2015]). In any event, "[w]hilethe sentence imposed was greater than that offered to defendant during plea negotiations,there is nothing in the record establishing that he was punished for asserting his right totrial or that the lengthier sentence ultimately imposed was the result of vindictiveness orretaliation" (People vAlexander, 160 AD3d 1121, 1124 [2018], lv denied 31 NY3d 1144[2018]). As such, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Planty, 155 AD3d1130, 1135 [2017], lv denied 30 NY3d 1118 [2018]; People vHaskins, 121 AD3d at 1185). We have considered defendant's remaining contentionsand find that they are lacking in merit.
Garry, P.J., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant also allegesthat he was not present when this amendment occurred. This allegation, however, isbelied by the record.