| People v Harris |
| 2019 NY Slip Op 53943 [177 AD3d 1199] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Harris, Appellant. |
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Hogan, J.), renderedJanuary 11, 2018 in Schenectady County, upon a verdict convicting defendant of thecrimes of arson in the second degree, burglary in the first degree, attempted assault in thesecond degree, falsely reporting an incident in the third degree (two counts) andharassment in the second degree.
In May 2017, based upon events that unfolded during the early morning hours ofMarch 11, 2017, defendant was indicted on charges of arson in the second degree,burglary in the first degree, attempted assault in the second degree, falsely reporting anincident in the third degree (two counts) and assault in the third degree. Following aseven-day jury trial, defendant was found guilty of the first five counts of the indictmentand, as to the sixth count of assault in the third degree, he was convicted of the lesserincluded offense of harassment in the second degree. He was subsequently sentenced tovarious concurrent prison terms, the longest of which was 15 years. Defendantappeals.
Initially, defendant failed to preserve his challenge to the legal sufficiency of theevidence supporting his convictions, inasmuch as his general trial motion for dismissaldid not include the specific arguments he raises on appeal (see People v Gray, 86NY2d 10, 19 [1995]; People vChaneyfield, 157 AD3d 996, 996 [2018], lv denied 31 NY3d 1012[2018]). However, because defendant also argues that his convictions are not supportedby the weight of the evidence, we nevertheless must determine whether the Peopleproved each element of the crimes beyond a reasonable doubt (see People v Henry, 166 AD3d1289, 1289 [2018]; Peoplev Harden, 134 AD3d 1160, 1160 [2015], lv denied 27 NY3d 1133[2016]).
The trial evidence established that defendant and his wife were patrons at a bar in theCity of Schenectady, Schenectady County during the early morning hours of March 11,2017 and that they engaged in a series of heated arguments over when and if to go home,with defendant wanting to leave and the wife wanting to stay. The evidence revealed thatthe couple's dispute escalated to the point of requiring police intervention around 1:00a.m. and that, after a period of de-escalation, the couple was ultimately permitted toreenter the bar. However, testimony and video footage from the bar demonstrated that thecouple's dispute escalated once again more than an hour later, this time with defendantgrabbing his wife's arm to try to forcibly remove her from the bar. As established by theevidence, several patrons intervened, resulting in defendant being pushed out of the barand into the street, where a scuffle between defendant and other patrons ensued.Deferring to the jury's credibility determinations, we find that the foregoing evidenceamply supports the conclusion that, through his conduct toward his wife at the bar,defendant committed harassment in the second degree (see Penal Law§ 240.26; People vMcMillon, 124 AD3d 922, 923 [2015], lv denied 25 NY3d 1204[2015]).
With respect to the remaining charges, the evidence, including testimony given bythe wife, established that, while defendant was engaged in the scuffle, the wifevoluntarily left the bar with a male and a female and entered an apartment building acrossthe street. As evidenced by testimony and two recorded 911 calls, defendant thereafterrepeatedly reported to the police that his wife had been kidnapped. The evidencespecifically showed that defendant called 911 at 3:54 a.m. to report the allegedkidnapping, that he visited the police station shortly after 4:00 a.m. to again report thealleged kidnapping and that he called 911 a second time at 4:59 a.m. to complain that hiswife had not yet been found. A police officer who spoke with defendant at the stationaround 4:00 a.m. testified that defendant claimed that his wife had been abducted by afew men and taken to an apartment building across from the bar. Statements made bydefendant to law enforcement after his apprehension suggested that he knew that his wifewas in the apartment building voluntarily.
The evidence also showed that, shortly after 5:30 a.m., police officers and membersof the fire department responded to a 911 call, made by a female, reporting that there wasa fire in the apartment building across from the bar. As demonstrated by the evidence, theensuing investigation revealed that the fire had been intentionally started with the aid ofseveral 40-ounce Olde English malt liquor bottles that had been stuffed with papertowels doused in gasoline and placed on different levels of the apartment building'sstairwell. The evidence revealed that, despite testing, there was no forensic evidencelinking defendant to the arson scene. However, the People presented eyewitnesstestimony and other circumstantial evidence that pointed to defendant as having been thearsonist.
With respect to the eyewitness testimony, the male with whom the wife had left thebar (hereinafter referred to as the eyewitness) testified that he lived in the building andthat, prior to the fire, he had heard a noise in the stairwell and observed defendanttraverse the stairs from the first floor to the third floor several times. The eyewitnesstestified that he then heard "stuff falling . . . down the stairs" and saw thatsome debris was on fire. He stated that, after informing the wife and the other female ofthe fire, he observed the wife argue with defendant in the hallway and that, as the wifeand the other female were trying to exit the building, he saw defendant squirt a liquid intheir direction and attempt to light whatever was in front of them on fire. As establishedby police testimony, the eyewitness identified defendant as the man he had seen in thestairwell during a showup identification procedure conducted less than an hour after thearson.[FN1]Testimony from the wife and the other female corroborated certain aspects of theeyewitness's account, including that there was a noise that prompted the eyewitness tolook through a window to the hallway. However, neither the wife nor the female testifiedto having seen defendant in the stairwell.
As for the circumstantial evidence, the police discovered several empty Olde Englishmalt liquor bottles at defendant's house, some of which bore the same expiration date asthose found at the scene. In addition, testimony revealed that, shortly after the fire, policeofficers found defendant at his house hiding in a crawl space underneath the basementstairs. The wife testified that defendant hid after he saw police cars arrive at the house.She further stated that she observed defendant's leather jacket—a dry-clean onlyitem—in the washing machine.
With respect to the two convictions of falsely reporting an incident in the thirddegree, we find that the evidence reasonably supports the jury's conclusion that defendantknew that his wife had voluntarily gone to the apartment and that he nonetheless falselyreported to a 911 dispatcher and to the police in person that his wife had been kidnapped.Although a different verdict would not have been unreasonable, we find that defendant'sconvictions on two counts of falsely reporting an incident in the third degree aresupported by the weight of the credible evidence (see Penal Law§ 240.50 [2], [3]; People v Hanifin, 77 AD3d 1181, 1182 [2010]).
As for the convictions of arson in the second degree, burglary in the first degree andattempted assault in the second degree, defendant brought out numerous inconsistenciesand implausibilities in the eyewitness's account and effectively attacked the eyewitness'scredibility with questions relating to his criminal history and potential motives forfabricating his testimony. Defendant also provided alternate explanations for most of thecircumstantial evidence against him. Thus, in our view, it would not have beenunreasonable for the jury to have acquitted defendant of the three charges relating to theapartment fire. However, viewing the evidence in a neutral light and deferring to thejury's credibility determinations, we are satisfied that defendant's convictions for arson inthe second degree, burglary in the first degree and attempted assault in the second degreeare supported by the weight of the evidence (see Penal Law§§ 150.15, 140.30 [3]; 120.05 [2]; 110.00; People v Baldwin, 173 AD3d1748, 1748-1749 [2019], lv denied 34 NY3d 928 [2019]).
Although we find that the verdict was not against the weight of the evidence, we findthat County Court (Sypniewski, J.) erred in denying defendant's motion to suppress apotentially incriminating statement that he made after invoking his constitutional right tocounsel during a custodial interrogation and that Supreme Court erred in allowing certainvideo evidence of the potentially incriminating statement to be played for the jurywithout an adequate curative instruction. As a result of the undue prejudice flowing fromthese errors, the judgment of conviction must be reversed.
The right to counsel is a foundational and long "cherished principle" underlying ourcriminal justice system (People v Settles, 46 NY2d 154, 160-161 [1978]; seee.g. NY Const, art I, § 6). Thus, the right to counsel indelibly attachesas soon as "a defendant in custody unequivocally requests the assistance of counsel"(People v Glover, 87 NY2d 838, 839 [1995]; see People v Leflore, 154 AD3d 1164, 1167 [2017], lvdenied 30 NY3d 1106 [2018]; People v Henry, 133 AD3d 1085, 1086 [2015]). "Whethera particular request is or is not unequivocal is a mixed question of law and fact that mustbe determined with reference to the circumstances surrounding the request[,] includingthe defendant's demeanor, manner of expression and the particular words found to havebeen used by the defendant" (People v Glover, 87 NY2d at 839; accordPeople v Henry, 133 AD3d at 1086; People v Jemmott, 116 AD3d 1244, 1246 [2014]).
At trial, the People admitted into evidence a DVD video recording of the first 50minutes and 55 seconds of defendant's custodial interrogation.[FN2] A review of that video recording showsthat defendant was advised of and acknowledged his Miranda rights in writingroughly 16 minutes into the custodial interrogation, after having made small talk with thedetective questioning him. For the next 24 minutes, defendant openly and respectfullyanswered questions regarding the events that transpired earlier that morning, includingwhether he entered the apartment building, which he maintained that he did not.However, 40 minutes into the interview, defendant became increasingly quiet and lesseager to engage in conversation. Indeed, the detective spoke for roughly3
The jury, however, was erroneously permitted to view the next two minutes andseven seconds of the video recording. During that portion of the video recording, thedetective—seemingly understanding defendant's statement to be a request for anattorney—responded, "Okay, so you want a lawyer, is that what you'resaying?" (Emphasis added.) Although defendant then gave an equivocal response, theright to counsel had already indelibly attached and could not be waived in the absence ofcounsel (see People v Esposito, 68 NY2d at 962; People v Roman, 175AD3d at 1199; People v Zamiela, 84 AD2d 675, 675 [1981]). Defendant thenfollowed up his statement with, "I mean, I don't want to f**k myself," once againindicating a desire to exercise his right against self-incrimination. The detective began torespond but was interrupted by defendant, who potentially incriminated himself bystating, "Yeah, I know. I f**ked up. I don't want to f**k myself worse." The detectivepressed on, stating that he could not provide legal advice and that the decision belongedto defendant, but that it was an opportunity for defendant to explain his side of the story.Defendant then asked if his wife was still at the police station and, after the detectiveexpressed uncertainty, defendant was silent for roughly 30 seconds. The video recordingabruptly ended at that point because County Court had previously determined that thejury should not hear defendant's latter unequivocal request for counsel.
Even if we were to conclude that defendant's initial request for counsel wasequivocal, we would nonetheless find that it was unduly prejudicial for Supreme Court toallow the People to play for the jury the last two minutes and seven seconds of the videorecording, particularly without adequate curative instructions (see People v Johnson, 70AD3d 1188, 1190-1191 [2010]; People v Murphy, 51 AD3d 1057, 1058 [2008], lvdenied 11 NY3d 792 [2008]; see generally People v Lentini, 163 AD3d 1052, 1054[2018]). The prejudice that flowed from the last two minutes and seven seconds of thevideo recording was not mitigated by an adequate curative instruction. The jury watchedthat portion of the video three times—once during the People's case-in-chief, onceduring the People's summation and once more at the jury's request during deliberations.Immediately following the first viewing, Supreme Court stated, in relevant part,"Members of the jury, I want to instruct you that with respect to any statement the[d]efendant made regarding an attorney[,] you are not to have any negative inferencefrom that statement. There was a pretrial ruling with respect to this video and theseportions of the video are ruled admissible under New York State law." In our view, thecourt's imprecise and confusing instruction—which failed to emphatically instructthe jury to disregard any reference to an attorney and to reiterate that defendant has anabsolute right to remain silent—was insufficient to protect against the possibilitythat the jury might improperly infer consciousness of guilt from defendant's invocation ofhis right to counsel and to remain silent (see People v Lentini, 163 AD3d at 1054;People v Hunt, 18 AD3d891, 892 [2005]). The potential for prejudice was further compounded by SupremeCourt's vague reference to "a pretrial ruling," which may have had the unintendedconsequence of validating the references to an attorney by noting that the matter was thesubject of a pretrial hearing. Moreover, the jury's second and third viewings wereunaccompanied by any curative instruction whatsoever.
Errors of constitutional magnitude, such as the ones made in this case, maynonetheless be harmless if the evidence of guilt, without consideration of the erroneouslyadmitted evidence, is overwhelming and "there is no reasonable possibility that the errormight have contributed to [the] defendant's conviction" (People v Crimmins, 36NY2d 230, 237 [1975]; seePeople v Harris, 93 AD3d 58, 70 [2012], affd 20 NY3d 912 [2012]).The evidence against defendant was not overwhelming here. Aside from the testimonygiven by the eyewitness, whose credibility was damaged on cross-examination, the caseagainst defendant was largely circumstantial. As evidenced by two jury notes, the jurystruggled to reach a guilty verdict on the top charges of the indictment—arson inthe second degree, burglary in the first degree and attempted assault in the seconddegree—and only reached consensus after receiving an Allen charge. Theerroneously admitted portion of the video recording was clearly considered by the juryduring deliberations. Indeed, the jury specifically requested and watched the last 10minutes of the video recording in between its submission of two jury notes indicatingdisagreement on the first three charges of the indictment. Under all of the circumstances,including the absence of adequate curative instructions, we conclude that there is alikelihood that County Court's and Supreme Court's errors contributed to defendant'sconviction (see People vKennard, 134 AD3d 1519, 1521-1522 [2015]; People v Harris, 93 AD3dat 70; People v Knowles, 42AD3d 662, 665 [2007]; compare People v McLean, 243 AD2d 756, 756-757[1997], lv denied 91 NY2d 928 [1998]). Accordingly, the judgment of convictionmust be reversed, and the matter remitted for further proceedings.
Given our determination, we need not address defendant's remaining contention thatthe sentence imposed upon him was harsh and excessive.
Egan Jr., J.P., Lynch and Pritzker, JJ., concur. Ordered that the judgment is reversed,on the law, motion to suppress statements made after defendant's right to counselattached granted and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.
Footnote 1:We reject defendant'scontention that the pretrial identification—which occurred almost immediatelyafter defendant's apprehension and in a location roughly one tenth of a mile from thecrime scene—should have been suppressed as the result of an unreasonable orunduly suggestive showup procedure (see People v Mathis, 60 AD3d 1144, 1145-1146 [2009],lv denied 12 NY3d 927 [2009]; People v Brown, 46 AD3d 1128, 1129-1130 [2007]).
Footnote 2:The remainder of therecorded interrogation was precluded pursuant to a pretrial suppression hearing orderissued by County Court.