| People v Burns |
| 2020 NY Slip Op 06977 [188 AD3d 1438] |
| November 25, 2020 |
| Appellate Division, Third Department |
[*1](November 25, 2020)
| The People of the State of New York,Respondent, v Thomas Burns, Also Known as True, Also Known as Thomas Truelane,Also Known as Thomas Chavis, Appellant. |
Noreen McCarthy, Keene Valley, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered May 2,2016 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in thesecond degree (two counts), assault in the first degree, criminal possession of a weapon in thesecond degree (two counts), reckless endangerment in the first degree and criminal possession ofa weapon in the third degree.
Defendant was charged by indictment with attempted murder in the second degree, assault inthe first degree, two counts of criminal possession of a weapon in the second degree, recklessendangerment in the first degree, assault in the second degree, aggravated cruelty to animals andcriminal possession of a weapon in the third degree. Prior to trial, the count charging aggravatedcruelty to animals was dismissed. The remaining charges stemmed from two differentaltercations involving two different victims. First, in December 2013, defendant struck victim Ain the face causing him to break his jaw. Subsequently, in April 2014, defendant was identified asthe perpetrator in the shooting of victim B, which resulted in victim B becoming paralyzed.Following a jury trial, defendant was acquitted of the top count of attempted murder in thesecond degree and convicted, instead, of the lesser included offense of assault in the seconddegree. Defendant was otherwise convicted as charged and sentenced to consecutive prison termsof 20 years and seven years for his convictions of assault in the first degree and one count ofassault in the second degree, respectively, and to lesser concurrent prison terms on the remainingconvictions, with periods of postrelease supervision. Defendant appeals.
Defendant's primary contentions on appeal are that he was deprived of a fair trial due toineffective assistance of counsel and prosecutorial misconduct. Turning first to his ineffectiveassistance of counsel claim, to establish such a claim, "a defendant is required to demonstratethat he or she was not provided meaningful representation and that there is an absence ofstrategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Porter, 184 AD3d 1014,1018 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1069[2020]; accord People v Santana,179 AD3d 1299, 1302 [2020], lv denied 35 NY3d 973 [2020]). "This standard is notamenable to precise demarcation and necessarily hinges upon the facts and circumstances of eachparticular case. A reviewing court must avoid confusing true ineffectiveness with mere losingtactics and according undue significance to retrospective analysis. In short, the Constitutionguarantees a defendant a fair trial, not a perfect one" (People v Sostre, 172 AD3d 1623, 1627 [2019] [internal quotationmarks and citations omitted], lv denied 34 NY3d 938 [2019]; see People v De Marco, 33 AD3d1045, 1046 [2006]).
Defendant specifically contends that counsel was ineffective for failing to move to severcount 6 of the indictment, which charged assault in the second degree relating to victim A,because there was no statutory basis to join this charge with the other counts of the indictment,all of which related to the shooting of victim B. However, these offenses were properly joined asthey "[are] defined by the same or similar statutory provisions" (CPL 200.20 [2] [c]; see People v Cox, 129 AD3d1210, 1214 [2015], lv denied 26 NY3d 966 [2015]; People v Ai Jiang, 62 AD3d 515,515 [2009], lv denied 14 NY3d 769 [2010]), and defendant has failed to establish that amotion for severance would have been granted or that he suffered any prejudice from the lack ofseverance (see People v Cox, 129 AD3d at 1214). To that end, defendant does not allege"that he had a strong need to refrain from testifying concerning the charges arising from oneincident, and important testimony to present concerning the second incident" (People vHall, 169 AD2d 778, 779 [1991]; see People v Burnett, 228 AD2d 788, 790 [1996]).Additionally, "[t]he proof of each crime was separately presented, uncomplicated, and easilysegregable in the jury's mind" (People v Hall, 169 AD2d at 779), both victims identifieddefendant as the perpetrator (see People v McNeil, 165 AD2d 882, 883 [1990], lvdenied 76 NY2d 988 [1990]) and, despite defendant's contention to the contrary, bothincidents were supported by a substantial "quantum of proof" at trial (People v Burnett,228 AD2d at 790). Moreover, even if such motion could have been successful, we cannotconclude on this record that there was no strategic basis for counsel's decision not to make saidmotion, especially given that defendant had the benefit of two separate attorneys, both of whomhad the opportunity to make pretrial motions and did not move for severance (see People v McGee, 20 NY3d513, 520 [2013]; People vWeather, 182 AD3d 1043, 1044 [2020]).
Defendant's allegation that his counsel was ineffective for failing to request lesser includedoffense charges for count 1 (attempted murder in the second degree) and count 2 (assault in thefirst degree) is belied by the record as these charges were requested. Nor are we persuaded thatcounsel's decision to obtain an expert witness, whom Supreme Court ultimately deemedunqualified to testify on a specific issue, was anything other than a trial tactic that proved to beunsuccessful and does not, in and of itself, constitute ineffective assistance of counsel (seePeople v Baldi, 54 NY2d 137, 146 [1981]; People v Coles, 27 AD3d 830, 832 [2006], lv denied 7NY3d 757 [2006]). Further, despite counsel's failure to meet with defendant on one occasionprior to sentencing, it is exceedingly clear from the record that counsel went to great lengths toattempt to effectively communicate with defendant. The record reflects that trial counsel, amongother things, made pretrial motions, engaged in voir dire during jury selection, presented cogentopening and closing arguments and engaged in thorough cross-examination of each witness,thereby providing defendant with meaningful representation (see People v Bombard, 187 AD3d 1417, 1420 [2020]; People v Santana, 179 AD3d 1299,1302 [2020], lv denied 35 NY3d 973 [2020]).
We turn now to defendant's contention that prosecutorial misconduct deprived him of a fairtrial. We disagree. As an initial matter, defendant's assertions of misconduct with respect to theprosecutor's questions about defendant's religious beliefs and an implication by the prosecutorthat defendant is a bad parent are unpreserved for review as defendant "failed to rendercontemporaneous objections to the subject [questions and] statements when they were made" (People v Rudge, 185 AD3d 1214,1217 [2020], lv denied 35 NY3d 1070 [2020]; see People v Fragassi, 178 AD3d 1153, 1156-1157 [2019], lvdenied 34 NY3d 1128 [2020]). However, were these issues properly before us, we wouldfind that the challenged questions and comments were in response to issues raised by defendantduring his direct testimony; thus, defense counsel opened the door to further questioningregarding these issues (see People vGillie, 185 AD3d 1539, 1541 [2020], lv denied 35 NY3d 1094 [2020]; People v Warren, 100 AD3d 1399,1401 [2012]).
Turning to defendant's preserved contentions, although the prosecutor improperlycommented regarding defendant having assigned counsel, defendant's counsel immediatelyobjected, which objection Supreme Court sustained, and the court immediately gave anappropriate limiting instruction, thus minimizing any possible prejudice to defendant (see People v Morris, 140 AD3d1472, 1477 [2016], lv denied 28 NY3d 1074 [2016]). Similarly, the prosecutor beganreferring to statements that were not in evidence, to which defense counsel timely objected. Thecourt sustained the objection, barred further comment and issued a curative instruction (seeid.). Nor was defendant prejudiced when the prosecutor improperly attempted to instruct thejury on the law, which the court instructed the prosecutor not to do and immediately gave anappropriate curative instruction (see id.). Notably, our review of the record as a whole"fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorialmisconduct so as to deprive defendant of a fair trial" (People v Shamsuddin, 167 AD3d 1334, 1336 [2018] [internalquotation marks and citations omitted], lv denied 33 NY3d 953 [2019]). Moreover,"[g]iven the overwhelming proof of defendant's guilt, the cumulative effect of the challengedcomments was not so prejudicial as to deny defendant his fundamental right to a fair trial, and wecannot say that the jury would not have convicted defendant but for the prosecutor's comments"(People v Shamsuddin, 167 AD3d at 1337; see People v Harris, 162 AD3d 1240, 1244 [2018], lvdenied 32 NY3d 937 [2018]).[FN1]
Defendant also challenges Supreme Court's denial of his request for a jury charge on thelesser included offense of assault in the third degree as to count 6 of the indictment, charging himwith assault in the second degree with respect to victim A. "A defendant is entitled to a lesserincluded offense charge upon request when (1) it is impossible to commit the greater crimewithout concomitantly committing the lesser offense by the same conduct and (2) there is areasonable view of the evidence to support a finding that the defendant committed the lesseroffense but not the greater" (People vMagnuson, 177 AD3d 1089, 1094 [2019] [internal quotation marks and citationsomitted]; see People v Almonte, 33NY3d 1083, 1092 [2019]). The evidence adduced at trial, as admitted to by defendant,exhibited that victim A fractured his jaw and, as a result, had to have his jaw wired shut for fourweeks and multiple teeth removed. Based upon this evidence, "no reasonable view of theevidence could support a finding that the victim sustained anything less than a serious physicalinjury" (People v Sipp, 33 NY3d1119, 1120 [2019]; compare Penal Law § 120.00 [1]). Therefore,Supreme Court did not err in denying defendant's request (see People v Rodriguez, 166 AD3d 459, 459-460 [2018], lvdenied 32 NY3d 1209 [2019]; People v Hill, 130 AD3d 1305, 1306 [2015], lv denied 27NY3d 999 [2016]).
In his pro se brief, defendant contends that Supreme Court failed to conduct a "minimuminquiry" into defendant's request for new counsel. To the extent that defendant is referring to hissecond counsel,[FN2] thiscontention is devoid of merit. Prior to trial, Supreme Court conducted an in camera hearingregarding the attorney-client relationship and the possible replacement of trial counsel. Duringthis hearing, the court questioned both defendant and trial counsel and determined that theattorney-client relationship had not been irretrievably broken. Thereafter, during trial, a second incamera hearing was held wherein the court questioned defendant and trial counsel on how theirrelationship could be improved and how defendant could take a more active role in thequestioning of witnesses. As a result of the hearing, the court took steps to ensure that defendanthad ample time to consult with his attorney. Based on the foregoing, Supreme Court conductedan appropriate inquiry into defendant's complaints. As a result of the in camera hearings, thecourt was able to discern defendant's complaints and determine ways in which the attorney-clientrelationship could be improved, and it properly found that such complaints did not create goodcause for the substitution of trial counsel (see People v Spencer, 185 AD3d 1440, 1441 [2020]; People v Saunders, 176 AD3d1384, 1389 [2019], lv denied 35 NY3d 973 [2020]).
Defendant next challenges his sentence as harsh and excessive. Although defendant wassentenced to the maximum terms on many of his convictions, given the victims' severe injuriesand defendant's lack of remorse, "we discern neither an abuse of discretion nor extraordinarycircumstances warranting a reduction in the interest of justice" (People v Cole, 177 AD3d 1096,1103 [2019], lv denied 34 NY3d 1015 [2019]; see People v Wager, 173 AD3d 1352, 1359 [2019], lvdenied 34 NY3d 1020 [2019]). Further, the imposition of consecutive sentences waspermissible and warranted, as the attacks on the victims constituted "separate and distinct events"(People v Moon, 119 AD3d1293, 1294-1295 [2014] [internal quotation marks and citations omitted], lv denied24 NY3d 1004 [2014]; see Penal Law § 70.25 [2]; People v Couser, 28 NY3d 368,385 [2016]). Finally, defendant's contention that he was not provided proper notice of the grandjury proceeding against him has been waived as he failed to "move to dismiss the indictmentupon such ground within five days of arraignment upon the indictment as required by CPL190.50 (5) (c)" (People v Cherry,149 AD3d 1346, 1346 [2017] [internal quotation marks, brackets and citations omitted],lv denied 29 NY3d 1124 [2017]; see People v Henriquez, 173 AD3d 1268, 1269 n [2019]).Defendant's remaining arguments are unpreserved for our review.
Lynch, J.P., Mulvey and Colangelo, JJ., concur; Devine, J., not taking part. Ordered that thejudgment is affirmed.
Footnote 1:To the extent that defendant isalleging that it was prosecutorial misconduct for the People to indict him for animal cruelty andthat such misconduct deprived him of a fair trial, as this charge was dismissed well in advance oftrial, we find this argument to be meritless.
Footnote 2:Prior to trial, defendant's firstcounsel was relieved. After temporarily proceeding pro se, defendant was assigned new counsel,who represented him in further pretrial matters through sentencing.