| People v Perez |
| 2020 NY Slip Op 02684 [183 AD3d 934] |
| May 7, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Alex Perez, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedApril 24, 2019 in Albany County, upon a verdict convicting defendant of the crimes ofattempted assault in the first degree and assault in the second degree.
Defendant was charged in a multicount indictment stemming from an incident wherethe victim sustained lacerations after being stabbed and slashed with a sharp instrument.After defendant had been indicted, a search warrant was issued granting access to, amongother things, defendant's cell site location information from his cell phone. Prior to trial,defendant moved to suppress the evidence obtained by the search warrant. SupremeCourt found that probable cause supported the warrant application and, therefore, denieddefendant's motion. Following a jury trial, defendant was convicted of attempted assaultin the first degree and assault in the second degree. The court sentenced defendant toconcurrent prison terms, the greatest of which was eight years, followed by five years ofpostrelease supervision. Defendant appeals. We affirm.
Defendant argues that the verdict was not supported by legally sufficient evidence or,alternatively, was against the weight of the evidence. We disagree. At trial, the victimtestified that he and defendant had a hostile relationship after they could not reach anagreement concerning some contracting work. Prior to the incident in question,defendant dumped a water bottle on the victim and said, "I'm gonna get you. You ain'tgonna see it coming."[FN1] The victim further testified that, on theday in question, as he was unloading a truck near a property on Second Street in the Cityof Albany,[FN2]defendant came up behind him and stabbed him in the back and sliced him in the face.The victim turned around and then defendant "dart[ed] after [him] again." According tothe victim, defendant said, "I told you I would get you." Defendant tried to get the victimagain but the victim ran away. The victim was able to identify defendant by his voiceand, although defendant initially wore a bandana over his face, it fell off and the victimrecognized him.[FN3] The victim stated that, as aconsequence of the attack, he was saturated in blood and "[a] piece of [his] ear washanging off." A physician who treated the victim testified that the victim sustainedlacerations on his earlobe, back and neck and that he sutured them. The physician statedthat, based on how the victim's ear was cut, there could be an impairment of blood supplyand the ear could die and fall off. The victim also had follow-up care with a plasticsurgeon and had scars from this incident.
Viewing the foregoing evidence in the light most favorable to the People, we findthat the evidence was legally sufficient to support the verdict and to establish thatdefendant was the assailant (seePeople v Watson, 174 AD3d 1138, 1140 [2019], lv denied 34 NY3d 955[2019]; People v Reitz, 125AD3d 1425, 1425 [2015], lv denied 26 NY3d 934 [2015]; People v Lausane, 16 AD3d523, 523 [2005]).[FN4] As to defendant's weight of theevidence argument, given that defendant denied stabbing the victim and offered proofthat he was at his mother's house on Quail Street in Albany at the time when the victimstated that the alleged crimes occurred, an acquittal would not have been unreasonable.Notwithstanding this proof, the jury apparently credited the testimony of the victim andhis friend—both of whom were thoroughly cross-examined—in reaching itsverdict (see People vPietoso, 168 AD3d 1276, 1277-1278 [2019], lv denied 33 NY3d 1034[2019]; People v Danford,88 AD3d 1064, 1066 [2011], lv denied 18 NY3d 882 [2012]). Althoughdefendant contends that the victim and his friend were unworthy of belief and gavecontradictory testimony, this pertains to their credibility—a matter resting withinthe province of the jury to resolve (see People v Wright, 160 AD3d 1110, 1112 [2018], lvdenied 31 NY3d 1154 [2018]; People v Gunn, 144 AD3d 1193, 1194 [2016], lvdenied 28 NY3d 1145 [2017]). Accordingly, we cannot say that the verdict wasagainst the weight of the evidence (see People v Watson, 174 AD3d at 1140; People v Coppins, 173 AD3d1459, 1463 [2019], lv denied 34 NY3d 929 [2019]; People v Johnson, 107 AD3d1161, 1163 [2013], lv denied 21 NY3d 1075 [2013]).
Defendant also claims that Supreme Court erred in denying his suppression motionbecause the search warrant application directed to his cell phone provider was notsupported by probable cause.[FN5] Assuming, without deciding, that thesuppression motion should have been granted, we find that such error was harmless (see generally People vMairena, 34 NY3d 473, 484-485 [2019]; People v Crimmins, 36 NY2d230, 241-242 [1975]).[FN6] The record discloses that the victimidentified defendant as the assailant after recognizing his voice and then seeing his face.The victim's friend likewise identified defendant upon seeing his face. In view of thestrong and unequivocal identification testimony by the victim and his friend and thethreatening text messages sent by defendant to the victim, there was overwhelmingevidence of defendant's guilt (see People v Rice, 75 NY2d 929, 932 [1990];People v Rios, 183 AD2d 734, 734-735 [1992], lv denied 80 NY2d 908[1992]). Furthermore, any error did not infect or taint the verdict given that the cell sitelocation information derived from the search warrant was beneficial to both the Peopleand defendant (see generally People v Mairena, 34 NY3d at 485-486). At trial, arecords custodian from defendant's cell phone provider stated that it was possible tomake a map showing the location of cell phone towers, which corresponded to where acell phone was located when a call was made. Any location, however, would only be an"approximation." An analyst with a crimes analysis center testified that, based on theinformation provided by defendant's cell phone provider, defendant's cell phone was inthe general area of both the Second Street location—i.e., where the crimeoccurred—and defendant's mother's house on Quail Street—i.e., wheredefendant claimed he was—during the incident in question. The record alsoindicates that defendant's mother's house was approximately a four-minute walk from theSecond Street location. Given that the cell site location evidence retrieved fromdefendant's cell phone was probative of both the People's case and defendant's alibidefense, we find that such evidence did not affect the verdict.[FN7]
We reject defendant's argument that he received ineffective assistance of counselbased upon his counsel's failure to object to the admission of certain Molineuxevidence. The Molineux evidence at issue pertained to an alleged insurance fraudscheme between defendant and the victim and was relevant to the issues of identity andmotive. That said, counsel cannot be deemed ineffective for failing to raise an objectionthat had little or no chance of succeeding (see People v Leonard, 177 AD3d 1158, 1163 [2019], lvdenied 34 NY3d 1160 [2020]; People v Stokes, 159 AD3d 1041, 1043 [2018]). Moreover,the record discloses that counsel made opening and closing statements, raised appropriateobjections, challenged the veracity of the People's witnesses, offered proof supporting analibi for defendant and obtained an acquittal of one of the charges in the indictment.Viewing counsel's representation as a whole, we find that defendant received meaningfulrepresentation (see People vTurner, 172 AD3d 1768, 1772 [2019], lv denied 34 NY3d 939 [2019];People v Pitt, 170 AD3d1282, 1286 [2019], lv denied 33 NY3d 1072 [2019]).
Finally, we conclude that the sentence was neither harsh nor excessive. Because therecord fails to disclose any abuse of discretion or extraordinary circumstances warrantinga modification of the imposed sentence, the sentence will not be disturbed (see Peoplev Coppins, 173 AD3d at 1464; People v Coleman, 151 AD3d 1385, 1389 [2017], lvdenied 29 NY3d 1125 [2017]).
Egan Jr., J., concurs.
Garry, P.J. (concurring). We concur in affirming the judgment of conviction, butwrite separately to discuss the test applied in finding that the error in denying the motionto suppress the data obtained from defendant's cell phone provider was harmless. Weagree with the determination, as "under the test for harmless constitutional error laiddown by the Supreme Court of the United States, . . . there is no reasonablepossibility that the error might have contributed to defendant's conviction and. . . it was thus harmless beyond a reasonable doubt" (People vCrimmins, 36 NY2d 230, 237 [1975]; see Chapman v California, 386 US 18,24-25 [1967]).
The trial testimony revealed that the location data obtained from defendant's cellphone provider established nothing more than an "approximation" of his location at thetime of the attack. An analyst testified that the data demonstrated that defendant's cellphone was within the target area that included the site of the attack. However, the samedata also established—with equal accuracy—that the cell phone was in thearea of defendant's mother's home, located only a four-minute walk from the attack site.Defendant's alibi, corroborated by two other witnesses, was that he was at his mother'shome at the time of the attack. The data thus supported defendant's alibi to precisely thesame extent that it supported the People's theory that defendant perpetrated the attack.The data proved nothing more than that defendant was either where he claimed to be orwhere the People claimed he was at the time of the attack. The data thus had no probativevalue, nor any prejudicial effect, whatsoever. There was no possibility, under anyreasonable interpretation of the evidence and without regard to the quality of the otherproof, that the improper admission of this data affected the verdict in any way.
However, under our test for harmless error as it is ordinarily applied, "unless theproof of [a] defendant's guilt, without reference to the error, is overwhelming, there is nooccasion for consideration of any doctrine of harmless error" (People vCrimmins, 36 NY2d at 241; accord People v Johnson, 57 NY2d 969, 970[1982]). An appellate court must follow a two-step analysis in which it may not give anyconsideration to the harmlessness of an error unless it has first determined that theevidence of the defendant's guilt was overwhelming—that is, when "the quantumand nature of proof, excising the error, are so logically compelling and therefore forcefulin the particular case as to lead the appellate court to the conclusion that a jury composedof honest, well-intentioned, and reasonable men and women on consideration of suchevidence would almost certainly have convicted the defendant" (People vCrimmins, 36 NY2d at 241-242 [internal quotation marks omitted]; see People v Mairena, 34NY3d 473, 484-485, 2019 NY Slip Op 08978, *5 [2019]). The majority agrees thatthe evidence was overwhelming; we cannot find that it meets that high standard.
No physical evidence placed defendant at the scene; the case hinged entirely upon acredibility contest between the People's witnesses—the victim and his associate,who allegedly witnessed the attack—and defendant's witnesses, who claimed thatdefendant was at his mother's home. As defendant argues, the victim's testimony wasnotably evasive, inconsistent and even combative, and the jury apparently did not fullycredit his account, as it acquitted defendant on the most serious charge against him. Somecorroboration of the victim's claim that defendant was the attacker was provided by aseries of profane, insulting text messages exchanged between defendant and the victimduring the days just before the assault, in which defendant repeatedly made expressthreats that he was planning an imminent attack upon the victim. However, these samemessages revealed that the animosity was fully mutual and that the victim's hatred andanger toward defendant was intense—thus supporting defendant's theory that thevictim was making false accusations against him as an instrument of revenge.Accordingly, we cannot find that the evidence against defendant was so compelling thatit can fairly be characterized as overwhelming (compare People v Rice, 75 NY2d929, 932 [1990]; People v Rios, 183 AD2d 734, 734-735 [1992], lvdenied 80 NY2d 908 [1992]).
After observing the demeanor of the witnesses and listening to their testimony in afair trial in which both sides had full opportunities to present evidence and cross-examineopposing witnesses, the jury elected to convict defendant on all but one of the chargesagainst him. According the appropriate deference to the jury's credibility assessments, wefully agree with the majority that the weight of the evidence supports the verdict.Nevertheless, as above, if the evidence is not overwhelming, the obvious harmlessness ofthe error here could be given no consideration and reversal would be required if theCrimmins test for harmless error were strictly applied. For these reasons, webelieve that this unusual case calls out for either a clarification of the governing law or anexpansion of our current test for harmless error that, in appropriate circumstances, mightallow a multifactorial analysis, such that the clear harmlessness of an error might beweighed in conjunction with the quantum of the other proof of a defendant's guilt, ratherthan entirely disregarded solely because the proof was not otherwise overwhelming.
"The ultimate objective" of our test for harmless error, "grounded in sound policyconsiderations, is the wise balancing, in the context of the individual case, of thecompeting interests of the defendant and those of the People" (People vCrimmins, 36 NY2d at 241). In fashioning this test, the Court of Appeals found that"every error of law (save, perhaps, one of sheerest technicality) is, ipso facto,deemed to be prejudicial" unless rendered harmless by other overwhelming proof of guilt(id. at 241 [emphasis added and omitted]). In our view, this exemption for errorsof "sheerest technicality" reveals a recognition that the purpose of the harmless erroranalysis would not be served if errors of such complete inconsequence that they couldnot have affected a defendant's rights under any circumstances must be held to require anew trial solely because the other proof was not overwhelming. The inclusion of thisexemption suggests, sub silentio, that the Court of Appeals recognized that there will betimes when the prerequisite of overwhelming evidence need not be satisfied in order toconclude, with confidence, that an error is harmless within the scope and purpose of theCrimmins analysis. In our view, this is that unusual case.
Examples of errors that have been found to be of such "sheer technicality" that theycarry with them no potential for unfair prejudice are rare, but they have occurred (seePeople v Fondal, 154 AD2d 476, 477 [2d Dept 1989], lv denied 75 NY2d770 [1989] [violation of best evidence rule by admitting copy of videotape in differentformat from the original recording]; People v Mortillaro, 143 AD2d 148, 149 [2dDept 1988], lv denied 73 NY2d 788 [1988] [any minimal prejudice resultingfrom preclusion of redirect questioning related to the defendant's alleged motive formurder was neutralized by defense counsel's summation]; People v Lyons, 125AD2d 593, 595 [2d Dept 1986], lv denied 69 NY2d 952 [1987] [erroneousadmission of statement obtained in violation of the defendant's Miranda rightscould not be deemed prejudicial, as the statement was exculpatory]).
The constitutional error of failing to suppress cell phone data that was obtainedwithout probable cause, considered in the abstract, is admittedly difficult to categorize asa technical error. Nevertheless, in the unusual circumstances presented here, and as thereis no reasonable possibility whatsoever that the verdict was affected, we believe that theerror was "based on the 'sheerest technicality,' and hence [cannot] be deemed prejudicial"(People v Lyons, 125 AD2d at 595, quoting People v Crimmins, 36NY2d at 241). Further, we believe that it is consistent with the purpose of "wisebalancing, in the context of the individual case, of the competing interests of thedefendant and those of the People" (People v Crimmins, 36 NY2d at 241) toconsider that lack of prejudice in conjunction with the weight and quality of theother proof, without requiring a preliminary determination that the other proof wasoverwhelming. Accordingly, we find that the error was plainly harmless, and we thusconcur that the judgment should be affirmed.
Mulvey, J., concurs.
Colangelo, J. (dissenting). I respectfully dissent. As more fully described in theopinions of my colleagues, defendant was convicted of an assault upon the victim thatallegedly took place in an area located a few blocks from the home of defendant'smother. The victim and the victim's friend, through their testimony, placed defendant atthe scene. Defendant adduced testimony from alibi witnesses that he was visiting hismother at the time of the alleged attack. Supreme Court admitted into evidence cellphone location data derived from defendant's cell phone that placed defendant's cellphone—and presumably defendant—within an area that included the site ofthe alleged attack. That same general location data included within its geographic scopethe location of the home of defendant's mother, where he claimed to be during thealleged attack.
The decisions of my colleagues either assume without deciding (the majority) orconclude as I do (the concurrence) that Supreme Court erred in denying defendant'spretrial motion to suppress defendant's cell phone location data, and in admitting suchdata at trial. They also conclude that such error, actual or presumed, was harmless, butfor different reasons. In essence, the majority applies the longstanding New York test offirst assessing whether the evidence adduced at trial was overwhelming in favor ofconviction, concludes that it was, and therefore the admission of the cell phone locationdata was harmless since it could not have influenced the result of the trial. Theconcurrence disagrees with the finding that the evidence of guilt was overwhelming, butfinds the error of admitting the cell phone location data nonetheless harmless; theconcurrence maintains that, since its effect was to favor, or disfavor, the contentions ofeach side equally, this is one of the exceedingly rare cases where, despite the absence ofoverwhelming evidence of guilt, the admission of tainted evidence, however misguided,was, in the words of the leading Court of Appeals case of People v Crimmins (36NY2d 230, 241 [1975]), nothing more than the "sheerest technicality." Because I believethat the other evidence of defendant's guilt was not overwhelming, and the effect ofadmitting the cell phone location data not necessarily neutral, I dissent and would reversethe judgment of conviction.
Initially, I agree with the assessment in the concurring opinion that proof ofdefendant's guilt was not overwhelming—i.e., the lack of physical evidenceplacing defendant at the scene and the evasive testimony of the People's witness, alongwith the testimony of defendant's alibi witnesses to the effect that defendant was not atthe scene, but was visiting his mother at her house a short distance away. I disagree,however, that the improper admission of the cell phone location data qualifies as the"sheerest technicality" (id.) and was therefore harmless error, as urged in theconcurrence.
Although the cell phone location data was consistent with placing defendant at eitherthe alleged crime scene, as the People contended, or at his mother's house, as defendant'salibi witnesses testified, its admission was not neutral when evaluated in the criminal trialcontext. The cell phone location data likely enhanced the People's case by providing ascientific/technological verification for their theory of the case and the testimony of theirwitnesses, who contradicted defendant's alibi. Absent such location data, the trial maywell have devolved into a pure swearing contest between the alleged victim and hisfriend on the one hand and defendant's alibi witnesses on the other, with the outcomebeyond our power to now reconstruct. Whether the jury used the tainted evidence in thePeople's favor cannot be ascertained; the fact that such evidence was, due to SupremeCourt's error, available for the jury to use renders the error in admitting it not harmless.By offering scientific support for the People's case, the practical effect of its admissionwas, thus, not neutral, and the court's error in allowing it is more than the "sheeresttechnicality" (id.).
In addition, whether that scientific evidence may have also supported, in equalmeasure, defendant's alibi position is of no moment. Even if, as a purely logical matter, arational person might weigh such evidence equally, that alone is insufficient to make itsmistaken admission the "sheerest technicality" (id.) in the context of this criminalcase, where, as distinguished from a civil trial, the proof is not measured by the slightdeviation from equipoise of an apothecary's scale. In a criminal matter, the People mustmeet the higher standard of proof beyond a reasonable doubt. Perhaps, as courts havesuggested, it is this fundamental premise, together with our inability to divine or recreatethe thought processes of 12 jurors, that undergirds the longstanding, and rarely deviatedfrom, overwhelming evidence rule (see People v Mairena, 34 NY3d 473, 484-485, 2019 NYSlip Op 08978, *5 [2019]; People v Crimmins, 36 NY2d at 240-242). In short, byproviding a scientific basis for the jury to decide that the People's witnesses were worthyof belief and defendant's alibi witnesses were not, Supreme Court's error in admitting thecell phone location data was not harmless, and the remedy should be a new trial.
Ordered that the judgment is affirmed, and matter remitted to the Supreme Court forfurther proceedings pursuant to CPL 460.50 (5).
Footnote 1:The People alsointroduced text messages between defendant and the victim wherein defendant madesimilar threats.
Footnote 2:Defendant ownedseveral properties in this area.
Footnote 3:The victim's friend, whowas with the victim at the time of the attack, similarly testified to the account provided bythe victim and also identified defendant as the assailant when the bandana fell from hisface. When asked whether he was sure it was defendant, the victim's friend responded,"A hundred percent sure, yes."
Footnote 4:Contrary to defendant'sassertion, the People were not required to show that defendant caused or intended tocause a serious physical injury as defined by Penal Law § 10.00 (10), giventhat it is not an element of either attempted assault in the first degree (see PenalLaw §§ 110.00, 120.10 [2]) or assault in the second degree(see Penal Law § 120.05 [2]) as charged in the indictment.
Footnote 5:Defendant also assertsthat the warrant was overbroad. At the hearing, however, defendant noted that the onlyissue that was raised in his suppression motion was whether probable cause existed forthe issuance of the search warrant. As such, this assertion is unpreserved given that it isbeing raised for the first time on appeal (see People v Johnson, 172 AD3d 1628, 1633 [2019], lvdenied 34 NY3d 951 [2019]).
Footnote 6:We express no opinionon the concurrence's invitation to expand or clarify the harmless error analysis. We alsonote that neither the People nor defendant has argued for any change to such analysis.
Footnote 7:We also note that,during his entire summation, the prosecutor did not rely heavily on the cell site locationinformation derived from defendant's cell phone and made, at most, two cursoryreferences about such evidence in challenging defendant's alibi.