| People v Taylor |
| 2007 NY Slip Op 07943 [44 AD3d 1159] |
| October 25, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Archie Taylor,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Schenectady County (Giardino,J.), rendered July 9, 2004, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree (three counts), perjury in the first degree (two counts), attemptedassault in the second degree, perjury in the second degree, making an apparently sworn falsestatement in the first degree, resisting arrest, harassment in the second degree, making anapparently sworn false statement in the second degree, and making a punishable false writtenstatement.
Defendant allegedly sicced his dog on two uniformed police officers when they tried toapproach him after he sold crack cocaine to undercover officers during a buy-and-bust operationin the City of Schenectady, Schenectady County. An officer shot the dog while defendant ran. Hewas later apprehended while he was attempting to scale a fence and, after a struggle, arrested. Asearch revealed that defendant possessed a glass vial containing crack cocaine, as well as themarked "buy money" used by the undercover officers. Thereafter, in a written statement to anofficer assigned to the internal affairs bureau and in his grand jury testimony, defendant claimedthat he had never sold crack cocaine to anyone; rather, he maintained that after a womaninexplicably gave him $20 on the street, police officers confronted him, shot his dog without[*2]provocation and yelled racial slurs at him. He stated that heran in fear but gave himself up, at which point the officers physically attacked him, punching,kicking and choking him, and then planted crack cocaine on his person.
Defendant's claims were later determined to be unfounded and he was charged in twoindictments with numerous counts relating to the drug sales, his violently resisting arrest andmaking a false statement. The matter proceeded to trial, at the close of which a jury founddefendant guilty of the crimes set forth above. He was thereafter sentenced to an aggregate termof 8
Initially, we note the People's concession that although the issue is not preserved for ourreview, the evidence presented at trial was insufficient to prove counts 6 and 7 of the secondindictment, which charged perjury in the second degree and making an apparently sworn falsestatement in the first degree, respectively. The People urge the Court to reduce those convictionsand further concede that count 8 of the second indictment, which charged making an apparentlysworn false statement in the second degree, should be dismissed as inclusory (see CPL300.30 [4]). As defendant asserts, the written statement underlying counts 6 and 7—inwhich he alleged police misconduct during his arrest—was not a written instrument "forwhich an oath is required by law," an element of both crimes (Penal Law §§ 210.10,210.40; see People v Hart, 90 AD2d 856, 857 [1982]). That statement was signed andcontained a notice pursuant to Penal Law § 210.45, however, and there was testimony thatdefendant was informed that he was under oath prior to making the statement. The evidence wastherefore sufficient to support convictions of perjury in the third degree and making anapparently sworn false statement in the second degree and those convictions are not against theweight of the evidence (see Penal Law §§ 210.05, 210.35; People vMcCulloch, 226 AD2d 848, 849 [1996], lv denied 88 NY2d 1070 [1996]; Peoplev Hart, 90 AD2d at 857-858). Accordingly, we exercise our interest of justice jurisdictionand reduce defendant's convictions of perjury in the second degree (count 6) and making anapparently sworn false statement in the first degree (count 7) to perjury in the third degree andmaking an apparently sworn false statement in the second degree, respectively. We furtherdismiss his conviction of making an apparently sworn false statement in the second degree (count8), and remit to County Court for resentencing.
Turning to the remaining arguments, we reject defendant's argument that his separateconvictions of perjury in the first degree were against the weight of the evidence.[FN1]A defendant "is guilty of perjury in the first degree when he [or she] swears falsely and when his[or her] false statement (a) consists of testimony, and (b) is material to the action, proceeding ormatter in which it is made" (Penal Law § 210.15). Defendant asserts that his grand jurytestimony was not material to the crime investigated by the grand jury. We disagree.
False testimony is material if it " 'has the natural effect or tendency to impede, influence ordissuade the grand jury from pursuing its investigation' " (People v Davis, 53 NY2d 164,171 [1981] [citation omitted]; see People v Thomas, 162 AD2d 822, 823 [1990]). Therelevant counts of the second indictment, counts 1 and 5, charged defendant with perjury in thefirst degree based upon his testimony before the grand jury that he did not sell crack cocaine. As[*3]noted above, defendant claimed instead that when one of theundercover officers gave him a $20 bill, he simply pointed at an empty cigarette pack on theground and walked away, and that other officers subsequently planted crack cocaine on him. Thistestimony was in direct conflict with that of the undercover and arresting officers who testifiedextensively at trial regarding the details of the buy-and-bust operation and defendant's subsequentarrest. Viewing the evidence in a neutral light and " 'weigh[ing] the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]), the jury's determination that defendant gavefalse testimony that was material to the grand jury's investigation of whether defendant possessedor sold crack cocaine was not against the weight of the evidence (see e.g. People v Davis,53 NY2d at 171-172; People v Evans, 269 AD2d 797, 797 [2000], lv denied 95NY2d 834 [2000]).
Defendant's additional challenges require little further discussion. Defendant's counselexpressly waived defendant's right to be present at sidebar conferences in open court after bothCounty Court and counsel discussed the right with him and, thus, there is no merit to his claimthat his right to be present at a material stage of trial was violated (see People v Keen, 94NY2d 533, 538-539 [2000]; People vAbdullah, 28 AD3d 940, 941 [2006], lv denied 7 NY3d 784 [2006]; cf. People v McAdams, 22 AD3d885, 885-886 [2005]). We are similarly unpersuaded by defendant's argument that he wasdeprived of a fair trial due to the People's failure to timely turn over Bradymaterial—certain grand jury testimony[FN2]—in response to his general demand for disclosure. Defendant claims that the grand jurytestimony was exculpatory because it differed from that of the undercover investigators to theextent that the witness claimed that defendant placed crack cocaine in a cigarette pack, ratherthan handing it directly to the female undercover officer, and the witness indicated that he did notobserve a second sale to a male undercover officer. Our review of the testimony reveals,however, that the witness directly contradicted defendant's version of events in nearly everymaterial respect, stating that defendant possessed crack cocaine, used cigarette packs to transferthe drugs, engaged in multiple drug sales both prior to and on the day at issue—including asale to one of the undercover officers—and then sicced his dog on the police and wrestledwith the officers as they tried to apprehend him. Inasmuch as there is no reasonable probabilitythat the outcome of the trial would have been different if the material had been produced in atimely fashion, reversal is not required (see People v Monroe, 17 AD3d 863, 864 [2005]; People vHawes, 298 AD2d 706, 708 [2002], lv denied 99 NY2d 582 [2003]).
Finally, we have reviewed defendant's remaining arguments regarding ineffective assistanceof counsel and find them to be meritless. His argument that his sentence is harsh and excessive isacademic in light of our conclusion that remittal for resentencing is necessary.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by (1) reversing defendant'sconviction of making an apparently sworn false statement in the second degree under count 8 ofthe second indictment, (2) reducing defendant's conviction of perjury in the second degree undercount 6 of the second indictment to perjury in the third degree, and (3) reducing defendant'sconviction of making an apparently sworn false statement in the first degree under count 7 of thesecond indictment to making an apparently sworn false statement in the second degree; vacatethe sentences imposed on counts 6 and 7 and dismiss count 8 and matter remitted to the CountyCourt of Schenectady County for resentencing; and, as so modified, affirmed.
Footnote 1: Defendant's argument that theevidence was not legally sufficient to support these convictions is unpreserved for our review.
Footnote 2: Although the People contendthat the grand jury testimony at issue—given by an individual listed on the People'switness list who was never called at trial—is not contained in the record and urge us toremit for reconstruction of the record, a transcript of the testimony referred to by defendantappears twice in the record.