| People v Williams |
| 2020 NY Slip Op 02289 [182 AD3d 776] |
| April 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jarquell Williams, Also Known as Six Seven,Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), renderedNovember 20, 2015 in Albany County, upon a verdict convicting defendant of the crimesof murder in the second degree and criminal possession of a weapon in the seconddegree, and (2) by permission, from an order of said court, entered February 28, 2019 inAlbany County, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
In the mid-morning hours of October 16, 2014, the victim fired a handgun at severalmen standing outside of a health clinic in the City of Albany. One of the men respondedby pulling out a gun, pursuing the victim and shooting him in the head as he biked away.The wound proved fatal. Onlookers described the man who shot the victim as a very tallblack man with braided hair wearing a distinctive garment, described by some as aBuffalo Bulls sweatshirt and by another as a baseball jacket, and added that he had fledtoward a nearby apartment building. A responding officer recognized defendant from theeyewitness descriptions of the shooter and asked for a check of defendant's GPS anklebracelet, worn as a condition of parole, which confirmed that defendant was in the area atthe time of the shooting and was still in the apartment building. Police officerssurrounded the building, learned that defendant was holed up in the apartment of one ofhis acquaintances and eventually flushed him out with tear gas. Defendant was not armedor wearing the clothing described by witnesses to the shooting when he was taken intocustody, but investigators found the clothing in the apartment and an operable .38 caliberrevolver secreted outside the building.
Defendant was charged in an indictment with murder in the second degree andcriminal possession of a weapon in the second degree. He then made an unsuccessfulmotion to, in relevant part, suppress statements that he made to investigators after hisarrest and the clothing recovered from the apartment. The matter proceeded to a jury trialafter which defendant was convicted as charged. Supreme Court sentenced defendant, asecond felony offender, to a prison term of 25 years to life upon the murder convictionand a concurrent prison term of 15 years, to be followed by five years of postreleasesupervision, upon the weapon possession conviction. Defendant appeals from thejudgment of conviction and, by permission, from the denial of his postjudgment motionto vacate it.
To begin, the trial evidence supported the verdict in all respects. Multipleeyewitnesses saw part or all of what occurred and described to police the man whopursued and shot the victim. A responding officer thought that the descriptions fitdefendant, who he knew, and a location check of defendant's GPS ankle braceletconfirmed that defendant was outside the clinic at the time of the shooting and was stillin the apartment building where witnesses had seen the shooter flee. Surveillance videoobtained from nearby businesses also showed defendant—wearing a Buffalo Bullssweatshirt with a Yankees baseball cap prominently displayed in itshood—hanging out in the area with the acquaintance whose apartment he laterfled to and appearing to pursue the victim just before the fatal shot. Investigatorsrecovered defendant's sweatshirt, baseball cap and other personal items from theapartment after his apprehension, and further found a loaded handgun with threeexpended rounds outside of the building. The recovered handgun was operable and couldhave been the murder weapon, and DNA evidence pointing to defendant, as well asmaterial consistent with gunshot residue, were found on the sweatshirt.
Defendant's trial motion to dismiss was arguably detailed enough to preserve hislegal sufficiency argument for our review, but that argument fails inasmuch as theforegoing proof, when viewed in the light most favorable to the People, provided "avalid line of reasoning and permissible inferences from which a rational jury could havefound the elements of the crime[s] proved beyond a reasonable doubt" (People vSteinberg, 79 NY2d 673, 682 [1992]; see Penal Law§§ 125.25 [1]; 265.03 [3]; People v Rashid, 166 AD3d 1382, 1383 [2018], lvdenied 32 NY3d 1208 [2019]; People v Malloy, 166 AD3d 1302, 1305-1306 [2018],affd 33 NY3d 1078 [2019]). Further, assuming without deciding that a differentverdict was a reasonable possibility, our independent review of the conflicting testimonyand the various inferences that could be drawn from it leaves us satisfied that the verdictrendered by the jury is supported by the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Slocum, 178 AD3d 1131, 1134 [2019]; Peoplev Malloy, 166 AD3d at 1305-1306).
Turning to the various suppression issues raised by defendant, we agree withSupreme Court that he did not articulate "a legitimate expectation of privacy" in eitherhis acquaintance's apartment or in the outdoor area where the handgun was recoveredthat would afford him standing to contest the search and seizure of items from thoseareas (People v Wilkinson,166 AD3d 1396, 1399 [2018], lv denied 32 NY3d 1179 [2019]; seePeople v Ponder, 54 NY2d 160, 166 [1981]; People v Jones, 155 AD3d 1103, 1105 [2017], lvdenied 30 NY3d 1106 [2018]). As for his efforts to suppress statements made toinvestigators, he claimed that he was questioned in violation of his right to counsel.Contrary to his present contention, the existence of a parole violation warrant against himat the time of his questioning did not equate to "the commencement of a criminalproceeding to which the indelible right to counsel attaches" (People v Baxter, 140 AD3d1180, 1181 [2016], lv denied 29 NY3d 946 [2017]; accord People v Anthony, 152AD3d 1048, 1052 [2017], lv denied 30 NY3d 978 [2017]). The issue isinstead whether defendant, who was indisputably in custody at the time of questioning,invoked his right to counsel by unequivocally requesting a lawyer (see People vGlover, 87 NY2d 838, 839 [1995]; People v Engelhardt, 94 AD3d 1238, 1239-1240 [2012],lv denied 19 NY3d 960 [2012]).
In that regard, the hearing testimony and a video of the interrogation revealed thatdefendant was brought to the police station after his apprehension and advised of hisMiranda rights, which he orally acknowledged and implicitly waived (see People v Green, 141 AD3d1036, 1038 [2016], lv denied 28 NY3d 1072 [2016]; People v Fiorino, 130 AD3d1376, 1379-1380 [2015], lv denied 26 NY3d 1087 [2015]). He ponderedwhether he wanted his "family" or "a lawyer" present but, when asked to clarify, said thathe would like to talk to his family and did not unequivocally assert his right to counsel(see People v Fuschino, 59 NY2d 91, 100 [1983]; People v Fiorino, 130AD3d at 1379; People vHiggins, 124 AD3d 929, 931 [2015]). It was accordingly proper for SupremeCourt to determine that defendant's ensuing statements were admissible up until his laterunequivocal request for a lawyer. Investigators ceased questioning defendant about hisactivities at that point, but defendant went on to make unsolicited statements about themorning's events when asked whether he wanted a particular lawyer, statements thatSupreme Court appropriately concluded "were 'not the result of inducement, provocation,encouragement or acquiescence' " and were also admissible (People vHiggins, 124 AD3d at 932, quoting People v Maerling, 46 NY2d 289,302-303 [1978]).
Defendant's remaining contentions upon his direct appeal are unavailing. SupremeCourt properly permitted testimony to establish that defendant was on parole for anunspecified offense, information that was needed to explain why defendant was wearingthe ankle bracelet used to trace his whereabouts and was the subject of an appropriatelimiting instruction to the jury (see People v Walker, 80 AD3d 793, 794-795 [2011]; People v Lownes, 40 AD3d1269, 1270 [2007], lv denied 9 NY3d 878 [2007]). Finally, in view of thenature of the offenses committed and defendant's prior criminal history, the sentencesimposed by Supreme Court are not harsh or excessive.
As for defendant's appeal from the denial of his CPL 440.10 motion, we do not agreethat he presented newly discovered proof constituting "clear and convincing evidence offactual innocence, not mere legal insufficiency of evidence of guilt" (People v Mosley, 155 AD3d1124, 1125 [2017] [internal quotation marks and citation omitted], lv denied31 NY3d 985 [2018]; see CPL 440.10 [1] [h]; People v Fraser, 165 AD3d697, 699 [2018], lv denied 32 NY3d 1171 [2019]; People v Hamilton, 115 AD3d12, 23 [2014]). Defendant produced the affidavit from a person who went outsideafter the shooting and saw a man other than defendant running into the apartmentbuilding, proof that neither addressed the fact that defendant was also in the building norestablished that the other man shot the victim. A second set of statements came from theacquaintance whose apartment he retreated to after the shooting—a man who hadfirst identified defendant as the shooter before refusing to testify when called by thePeople at trial—indicating that his initial account was incorrect and that he did notsee defendant possess a gun or use it to shoot the victim.[FN1] The acquaintance's recantation of hisprior story is an "extremely unreliable form of evidence" (People v Tucker, 40 AD3d1213, 1214 [2007], lv denied 9 NY3d 882 [2007]; accord People v Larock, 139AD3d 1241, 1243 [2016], lv denied 28 NY3d 932 [2016]), and whateverdoubt it cast upon the extensive proof of defendant's guilt was inadequate "to support amotion to vacate a judgment based on actual innocence" (People v Mosley, 155AD3d at 1126). Therefore, Supreme Court properly refused to vacate defendant'sconviction pursuant to CPL 440.10 (1) (h). Supreme Court was also correct inconcluding that this evidence—to the extent that it was newly discovered evidencethat could not, with due diligence, have been produced at trial—merely"impeach[ed] or contradict[ed]" the trial evidence and would not have probably changedthe verdict so as to warrant setting aside the judgment pursuant to CPL 440.10 (1) (g)(People v Sides, 242 AD2d 750, 751 [1997], lv denied 91 NY2d 836[1997]; see People v Shaw,174 AD3d 1036, 1038-1039 [2019], lv dismissed 34 NY3d 1081 [2019]; People v Sharpe, 70 AD3d1184, 1186 [2010], lv denied 14 NY3d 892 [2010]).
Finally, defendant contends that trial counsel rendered ineffective assistance invarious respects, a contention that requires defendant to come forward with "proof of lessthan meaningful representation, rather than simple disagreement with strategies andtactics" (People v Rivera, 71 NY2d 705, 708-709 [1988]; see People v Stetin, 167 AD3d1245, 1249 [2018], lv denied 32 NY3d 1178 [2019]).[FN2] Although defendantcomplains that two individuals were not called as defense witnesses, he fails to articulatehow that damaged his case since both were called by the People and subject tocross-examination. Defense counsel also failed to call the acquaintance to testify, butthere were sound reasons to avoid doing so given that the acquaintance had alreadyattempted to invoke his right against self-incrimination (see People v Thomas, 51NY2d 466, 472-473 [1980]; People v Jones, 176 AD3d 1397, 1399 [2019]). There is noindication that defendant's mental issues affected his "ability to participate at trial or hiseventual sentencing, and defendant does not show that counsel's failure to morevigorously pursue those issues lacked a legitimate reason or constituted ineffectiveassistance" (People vThomas, 169 AD3d 1255, 1258 [2019] [internal quotation marks and citationsomitted], lv denied 33 NY3d 1036 [2019]). In short, notwithstanding the darkportrait painted by defendant from those and other allegations, the record as a wholereflects that counsel put forth a vigorous defense so as to afford defendant meaningfulrepresentation (see People vSantana, 179 AD3d 1299, 1299-1300 [2020]; People v Flower, 173 AD3d1449, 1457 [2019], lv denied 34 NY3d 931 [2019]; People v Shuaib, 111 AD3d1055, 1057-1058 [2013], lv denied 24 NY3d 1046 [2014]).
Garry, P.J., Clark, Pritzker and Colangelo, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:Defendant suggested,"[u]pon information and belief," that the People committed a Brady violation byfailing to disclose the acquaintance's recantation prior to trial. Defendant providednothing to substantiate his speculation that the People knew about the recantation; to thecontrary, the People's ignorance of the recantation was effectively confirmed by the factthat they sought to call the acquaintance as their witness at trial and were flummoxedwhen he refused to testify and sought to "plead the [Fifth]." There is no Bradyviolation where the exculpatory information was "unknown to [the People] and notwithin their possession" (Peoplev Hayes, 17 NY3d 46, 52 [2011]; see People v Stacconi, 151 AD3d 1395, 1397 [2017]).
Footnote 2:Inasmuch as defendantasserted a claim of ineffective assistance in his CPL article 440 motion and bases theclaim upon "matters appearing both in the record on direct appeal and outside of therecord," we address the claim in the context of his appeal from the denial of that motion(People v Thacker, 173AD3d 1360, 1361 n 2 [2019], lv denied 34 NY3d 938 [2019]).