| People v Heckstall |
| 2007 NY Slip Op 08141 [45 AD3d 907] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GregoryHeckstall, Also Known as G, Appellant. |
—[*1] Heather M. Abissi, New York Prosecutors Training Institute, Inc., Albany, forrespondent.
Peters, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.),rendered April 12, 2005, upon a verdict convicting defendant of the crimes of murder in the firstdegree (two counts) and conspiracy in the second degree.
Defendant's convictions for the crimes of murder in the first degree (two counts) andconspiracy to commit murder arise from the fatal shooting of Christopher Drabik on December30, 2003. Drabik, a confidential informant for the City of Albany Police Department, participatedin two controlled buys with Michael Hoffler (also known as Murder). Hoffler was later arrestedand indicted based on his transactions with Drabik; a trial was scheduled to commence in January2004. Drabik, who was expected to act as a primary witness at the trial, was murdered one weekbefore the trial began.[FN*]Hoffler, defendant and a third individual, Lance Booker, were arrested and charged with Drabik'smurder. Defendant was indicted for the crimes [*2]of murder inthe first degree (two counts), murder in the second degree and conspiracy in the second degree.Specifically, it charged that he was hired by Hoffler to commit the murder in order to preventDrabik from acting as a witness at Hoffler's pending drug trial. After a nine-day jury trial,defendant was convicted of murder in the first degree (two counts) and conspiracy in the seconddegree. He appeals and we affirm.
Defendant contends that by improperly discharging potential jurors who claimed that theywould suffer undue hardship or extreme inconvenience if they were required to serve on the jury,County Court abused its discretion and unconstitutionally narrowed the jury pool. Moreover, heclaims that his right to counsel was abrogated when County Court limited his attorney'sparticipation during the pre-voir dire excusal process.
We disagree. Prior to jury selection, defendant's counsel specifically requested that CountyCourt employ certain procedures when excusing jurors who claimed undue hardship. Thisincluded his request to approach the bench and file objections once a prospective juror claimedundue hardship. County Court agreed to specifically inquire and ensure that an individual wouldsuffer a valid hardship before it excused a potential juror, but denied counsel's request toapproach the bench to file objections by finding, as a matter of law, that counsel had no right toparticipate in the court's discretionary decisions when excusing prospective jurors for hardship(see People v Velasco, 77 NY2d 469, 473 [1991]). Counsel was, however, permitted tosubmit written objections to the court's rulings after the prospective jurors were excused.
County Court fully complied with Judiciary Law § 517 (b) and (c) and its attendantcourt rules (see 22 NYCRR 128.6-a) before it exercised its discretion to excuseprospective jurors based on claimed undue hardship. The determination to excuse a prospectivejuror before formal voir dire has begun is a matter resting solely in the discretion of the court. Adefendant has neither a statutory nor a constitutional right to personally participate in thediscussion which leads to the court's exercise of such discretion (see People v Velasco,77 NY2d at 473; see also People v Sloan, 79 NY2d 386, 392 [1992]).
Defendant next asserts that County Court improperly concluded that the introduction of aphotographic array which did not include defendant, but was viewed by the only witness to themurder, would open the door to the introduction of a second photo array which did includedefendant. The eyewitness, a newspaper delivery person, testified that he was making deliveriesfrom his vehicle on the morning that Drabik was shot. He saw two men talking together near thearea where the shooting eventually took place and then heard a gunshot. After seeing Drabik fallto the ground, he observed the shooter running until he stopped in the middle of the street and"locked eyes" with the eyewitness for a brief moment. Fearing for his safety, the eyewitness spedthrough the stop sign and left the scene. After calling 911, he returned to the scene to tend to thevictim. Shortly thereafter, the eyewitness was shown a photographic array containing sixindividuals—one of which was Booker. Testimony elicited at a pretrial hearing confirmedthat the eyewitness identified two individuals at that initial showing, stating that it was possiblethat one of them was involved in the shooting. Yet, the eyewitness maintained that he did not feelcomfortable with the photo array because no one had the same eyes as the shooter. After beingshown a second array of photographs, which included defendant, the eyewitness stated that hewas confident that defendant was the individual who ran towards him after he heard the gunshot.
Prior to trial, defendant moved to preclude the People from introducing the eyewitness's[*3]identification of him in the second photographic array.Although the People conceded that such evidence would not be admissible on their direct case,they contended that if defendant attempted to impeach the eyewitness with his previousidentification of Booker, he would open the door to the second identification of defendant.County Court agreed and defense counsel objected. For this reason, defense counsel did not elicittestimony from the eyewitness concerning the first identification.
A witness's pretrial photographic identification may not be introduced by the People in theirdirect case as it constitutes improper bolstering (see People v Rivera, 31 AD3d 1060, 1061 [2006], lv denied7 NY3d 869 [2006]; see also People v Mosley, 296 AD2d 595, 596 [2002]). However,this rule is not without exception. Here, defendant intended to elicit the testimony regarding thefirst photographic array in order to discredit the eyewitness's in-court identification of defendant.Had he been permitted to do so without the People being able to introduce the positive prioridentification of defendant, it would have created the "misimpression that the [eyewitness] wasunable to identify [the] assailant" (People v Lopez, 9 AD3d 692, 694 [2004]). Once defendant openedthe door, however, County Court was permitted to consider whether, and to what extent, suchevidence is incomplete or misleading so as to allow the People to correct a potential misleadingimpression (see People v Massie, 2 NY3d 179, 180-185 [2004]; see also People vLindsay, 42 NY2d 9, 12 [1977]). Thus, to the extent that the first array could be viewed asincomplete or misleading, County Court properly concluded that should such evidence bepresented to the jury, defendant would have opened the door to the admission of the secondphotographic array to correct any misleading impression.
Finally, defendant contends that County Court erred when it refused to charge the jury withthe lesser included offenses of manslaughter in the second degree and criminally negligenthomicide. To establish his entitlement to such charge, defendant was required to demonstrate thatit was not possible to commit the greater crime without necessarily committing the lesser and thata reasonable view of the evidence supported a finding that defendant committed only the lesseroffense (see People v Miller, 6NY3d 295, 302 [2006]; People v Barney, 99 NY2d 367, 371 [2003]; People v Morales, 36 AD3d 957,958 [2007], lv denied 8 NY3d 988 [2007]). While the first element of this threshold wassatisfied, as to the second, County Court properly concluded that there was no reasonable view ofthe evidence to support a finding that defendant was not the shooter and that he did not actintentionally but rather recklessly. Thus, the requested charge was properly denied.
Mercure, J.P., Crew III, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: After a jury trial, Hoffler wasfound guilty of numerous drug-related offenses. His convictions were recently affirmed by thisCourt (People v Hoffler, 41 AD3d891 [2007]).