| People v Watson |
| 2020 NY Slip Op 03050 [183 AD3d 1191] |
| May 28, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kashawn Watson, Appellant. |
Paul J. Connolly, Delmar, for appellant.
David J. Clegg, District Attorney, Kingston (Tracy Steeves of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 10, 2017, upon a verdict convicting defendant of the crimes ofattempted robbery in the first degree (two counts) and criminal possession of weapon inthe second degree (two counts).
In 2016, defendant and another individual, both of whom were wearing masks,entered and attempted to burglarize a home in the City of Kingston, Ulster County.Following an investigation of this home invasion, masks, among other things, werefound in a nearby abandoned car. DNA testing revealed that defendant was a significantcontributor for one of the masks. Defendant was thereafter arrested and charged in anindictment with multiple crimes. Prior to trial, defendant moved to suppress the buccalswab provided to law enforcement officials, but this motion was denied. A jury trial washeld, after which defendant was convicted of two counts of attempted robbery in the firstdegree and two counts of criminal possession of a weapon in the second degree. CountyCourt sentenced defendant to four concurrent prison terms of 15 years, each of whichwas to be followed by five years of postrelease supervision. Defendant appeals. Weaffirm.
Defendant argues that the verdict was not supported by legally sufficient evidence or,in the alternative, was against the weight of the evidence. In particular, he argues that theevidence was insufficient to identify him as one of the perpetrators. At trial, the Peopleadduced proof that two men were in a house one early morning looking for money. Oneof the perpetrators had a gun and the homeowner recognized him. The homeowner didnot recognize the other male perpetrator but stated that he had darker skin compared tothe gunman. As the homeowner's younger brother fought with the gunman, the otherperpetrator used a stun gun on him and then tied his hands with zip ties.[FN1] The girlfriend of thehomeowner's son, who was staying at the homeowner's house at the time, was awokenafter hearing screaming. The girlfriend stated that she observed two black males wearingmasks, one of which had short braids and was holding the stun gun. The girlfriend thensaw the two males fighting with the older brother and passing the stun gun between themas they struck him with it. As the three of them rolled down the stairs, the handgun wentoff. After hearing a gunshot, the homeowner saw the two males, who were both wearingblack clothing, run away.
A police officer with the City of Kingston Police Department testified that heresponded to the homeowner's home and, while at the scene, he received a call about aHyundai Tucson blocking a person's driveway, which was a few blocks from the crimescene. He went to the Tucson and a loaded handgun and a stun gun were found therein.A detective with the same police department testified that the shape of the bruises on theolder brother were consistent with the stun gun. A forensic scientist testified that, aftertest firing the handgun, the shell casing found in the homeowner's home matched thehandgun. In addition, black ski masks, a black sweatshirt and zip ties were found in theTucson. DNA testing was conducted and defendant was found to be a major contributoron one of the ski masks. Furthermore, the People introduced a photograph of a textmessage that was sent to defendant's girlfriend shortly before the incident in questiondepicting a selfie of defendant wearing a black sweatshirt. The People also adducedtestimony indicating that the cell phone that was used to send defendant's girlfriend theselfie was the same phone that was used to place a call to the owner of the Tucson priorto the occurrence of the crimes at issue.[FN2] When the gunman was apprehendedseveral hours after this incident, defendant was with him.
Viewing the foregoing evidence in the light most favorable to the People, a valid lineof reasoning and permissible inferences exist that could lead a rational juror to concludethat defendant was one of the perpetrators (see People v Johnson, 38 AD3d 1012, 1013 [2007]; People v Moore, 29 AD3d1077, 1078 [2006]). Accordingly, defendant's legal sufficiency contention is withoutmerit. Regarding defendant's weight of the evidence claim, a different result would nothave been unreasonable given that none of the witnesses positively identified defendantas a perpetrator (see People vParker, 127 AD3d 1425, 1427 [2015]; People v Lewis, 287 AD2d 888,889 [2001], lv denied 97 NY2d 684 [2001], lv denied uponreconsideration 97 NY2d 756 [2002]). Nevertheless, viewing the evidence in aneutral light and weighing the relative probative force of conflicting testimony and thestrength of conflicting inferences that may be drawn from such testimony, we aresatisfied that the jury's determination that defendant was one of the perpetrators issupported by the weight of the evidence (see People v Ackerman, 173 AD3d 1346, 1350 [2019],lv denied 34 NY3d 949 [2019]; People v Young, 152 AD3d 981, 982 [2017], lvdenied 30 NY3d 955 [2017]; People v Curtis, 42 AD3d 824, 825 [2007]).
Defendant also contends that the grand jury proceeding was impaired, therebyrequiring dismissal of the indictment. The dismissal of an indictment under CPL 210.35(5) is an exceptional remedy and should be ordered only where there is "prosecutorialwrongdoing, fraudulent conduct or errors [that] potentially prejudice the ultimatedecision reached by the [g]rand [j]ury" (People v Huston, 88 NY2d 400, 409[1996]; see People vWilkinson, 166 AD3d 1396, 1397 [2018], lv denied 32 NY3d 1179[2019]). Although a detective gave inaccurate testimony at the grand jury proceeding,there is no indication that the prosecutor knew that it was inaccurate when given.Furthermore, our review of the grand jury proceeding reveals additional evidence tosupport the charged crimes and, as County Court found, any error did not impair theproceeding (see People vHotaling, 135 AD3d 1171, 1172 [2016]; People v Andrews, 274 AD2d835, 836-837 [2000], lv denied 95 NY2d 960 [2000]; People v Mariani,203 AD2d 717, 719 [1994], lv denied 84 NY2d 869 [1994]). To the extent thatdefendant challenges the instructions given during the grand jury proceeding, suchchallenge is precluded given our determination herein that the conviction is supported bylegally sufficient evidence (seePeople v Urtz, 176 AD3d 1485, 1490 n 7 [2019], lv denied 34 NY3d1133 [2020]; People vHenry, 173 AD3d 1470, 1480 [2019], lv denied 34 NY3d 932[2019]).
We reject defendant's claim that County Court erred in denying his suppressionmotion. Although defendant contends that the police officers could not compel him to goto the police station after he was seen with the gunman hours after the home invasion, thetestimony from the suppression hearing reflects that he voluntarily agreed to do so.Furthermore, when he was taken to the police station, defendant was not placed inhandcuffs. The record also reflects that the interview room at the station where defendantwas situated was not locked and defendant was not handcuffed therein. Defendant wasasked if he felt free to leave, to which he responded affirmatively. When defendant wasasked to provide a buccal swab, he likewise agreed to do so (see People v Dallas, 119 AD3d1362, 1363 [2014], lv denied 24 NY3d 1083 [2014]). Based on the totalityof the circumstances, we find that defendant consented both to being taken to the policestation and to submitting to a buccal swab (see People v Kluge, 180 AD3d 705, 708 [2020]; People v Brinkley, 174 AD3d1159, 1163 [2019], lv denied 34 NY3d 979 [2019]; see generally Peoplev Gonzalez, 39 NY2d 122, 128-130 [1976]). As such, defendant's suppressionmotion was correctly denied.[FN3]
Defendant asserts that, under the best evidence rule, the cell phone video recordingof surveillance video that depicted the exterior of the bar where the owner of the Tucsonwas working, as well as the observations of the detective who viewed and recorded thiscell phone video, should have been precluded. Defendant further asserts that thedetective should not have been allowed to testify about what he saw on a surveillancevideo showing the inside of the bar. In overruling defendant's objection, County Courtnoted that the best evidence rule applied only to writings. Contrary to the court'sreasoning, however, the best evidence rule can apply to videos (see e.g. People v Cyrus, 48AD3d 150, 159 [2007], lv denied 10 NY3d 763 [2008]). Furthermore, thePeople did not call the bar manager or a person who installed the video equipment toauthenticate the surveillance video (compare People v Edmonds, 165 AD3d 1494, 1497 [2018];see generally People v Patterson, 93 NY2d 80, 84 [1999]). Accordingly, the courterred in overruling defendant's objection to this evidence. Nevertheless, in view of theoverwhelming circumstantial evidence, including the DNA evidence, and because therewas no significant probability that the jury would have acquitted defendant of all chargeshad his objection to the evidence at issue been sustained, we conclude that any error washarmless (see People vMoss, 22 AD3d 329, 330 [2005], lv denied 6 NY3d 836, lv deniedupon reconsideration 7 NY3d 759 [2006]; People v Eckhardt, 305 AD2d860, 864 [2003], lv denied 100 NY2d 620 [2003]; People v Pristell, 204AD2d 801, 802 [1994], lv denied 83 NY2d 970 [1994]; see generally Peoplev Crimmins, 36 NY2d 230, 232 [1975]).
Defendant also argues that he received the ineffective assistance of counsel. Wedisagree. Defendant faults his counsel for not requesting a missing witness charge afterthe People did not call the older brother as a witness. The record, however, does notindicate that the older brother would have offered noncumulative testimony and,therefore, his counsel cannot be deemed ineffective "for failing to pursue a missingwitness charge that stood little or no chance of success" (People v Hamilton, 176 AD3d1505, 1509 [2019] [internal quotation marks and citation omitted], lv denied34 NY3d 1128 [2020]). As to defendant's other grievances with his counsel, assuming,without deciding, that obtaining a cell phone number by using a fake name constituted abad act, such evidence in the case was relevant to the issue of identity (see generally People v Agina,18 NY3d 600, 603 [2012]). Accordingly, any failure to object to such evidence doesnot constitute ineffective assistance (see People v Alnutt, 107 AD3d 1139, 1145 [2013], lvdenied 22 NY3d 1136 [2014]). Likewise, any failure by counsel to request a limitinginstruction regarding this evidence did not deprive defendant of meaningfulrepresentation (see People vBuchanan, 95 AD3d 1433, 1436-1437 [2012], lv denied 22 NY3d 1039[2013]). Nor do we find merit in defendant's argument that his counsel was ineffectivefor not objecting to the prosecutor's comments made on summation regarding the use of afake name to obtain the cell phone (see People v Cox, 129 AD3d 1210, 1214 [2015], lvdenied 26 NY3d 966 [2015]). Although the prosecutor's remark equating the use offake names with criminality was better left unsaid, this isolated remark did not deprivedefendant of a fair trial (seePeople v Terry, 85 AD3d 1485, 1487-1488 [2011], lv denied 17 NY3d862 [2011]). We note that counsel made cogent opening and closing statements, offeredproof in support of defendant's defense, cross-examined the People's witnesses, raisedsuccessful evidentiary objections and secured the acquittal of multiple charges in theindictment. Viewing the record in its entirety, we cannot agree with defendant's argumentthat his counsel was ineffective (see People v Hilton, 166 AD3d 1316, 1320-1321 [2018],lv denied 32 NY3d 1205 [2019]; People v Wright, 160 AD3d 1110, 1112 [2018], lvdenied 31 NY3d 1154 [2018]).
Finally, we are unpersuaded by defendant's claim that the sentence was harsh andexcessive. The record fails to disclose any abuse of discretion or extraordinarycircumstances so as to warrant a modification of the sentence in the interest of justice (see People v Placido, 149AD3d 1157, 1160-1161 [2017]; People v Callicut, 101 AD3d 1256, 1264-1265 [2012],lv denied 20 NY3d 1096 [2013]). As such, the sentence will not bedisturbed.
Garry, P.J., Egan Jr., Lynch and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:The homeowner'syounger brother likewise testified that he recognized the gunman, but also that he did notsee the face of the other male perpetrator.
Footnote 2:The record discloses thata prepaid account was used for this cell phone and, therefore, the name and address couldnot be verified. Upon a search of the particular name and address associated with this cellphone, no match in Kingston was found for either of them.
Footnote 3:Although County Courtdid not strictly comply with CPL 710.60 (6), any failure to do so was not fatal under thecircumstances of this case given that the court did make an ultimate determination on thesuppression motion (comparePeople v Youngs, 169 AD3d 1155, 1156 [2019]) and a full and fair hearing wasconducted, thereby providing an ample basis for meaningful appellate review (seePeople v Brady, 16 NY2d 186, 188-189 [1965]; People v Pouliot, 64 AD3d 1043, 1044 [2009], lvdenied 13 NY3d 838 [2009]; People v Soto, 253 AD2d 359, 359 [1998],lv denied 92 NY2d 1039 [1998]; People v Curran, 229 AD2d 794, 795[1996], lv denied 89 NY2d 863 [1996]).