| People v Mitchell |
| 2008 NY Slip Op 08033 [55 AD3d 1048] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shamell Mitchell,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedJanuary 11, 2007, upon a verdict convicting defendant of the crime of burglary in the second degree.
During the early morning hours of December 15, 2005, Jenni Pomeroy and Tarence Williams wereasleep in the home that they shared with their child when they were suddenly awoken by a man wieldinga handgun and demanding money. Pomeroy was able, during the course of the confrontation, to leavethe bedroom, close herself in a bathroom and, after hearing the intruder leave the residence, dial 911.During the call, she identified defendant as the intruder and later alleged that, during the course of theencounter, he took from the apartment a safe and two cellular phones. Pomeroy and Williams wereinterviewed at the police station and, after viewing a photographic array, identifieddefendant—an individual who each knew prior to the incident—as the intruder. About onemonth later, defendant was arrested after he was found hiding in the trunk of his girlfriend's automobile.
Defendant was indicted for the crimes of burglary in the first degree (two counts), robbery in thefirst degree and petit larceny. When defendant moved to dismiss the indictment on the ground that itwas based upon legally insufficient evidence, County Court conducted an inspection of the grand juryminutes and denied the motion. County Court also denied [*2]defendant's motion to suppress any in court identification of him by thevictims based upon defendant's contention that the police employed suggestive tactics while showing thevictims a photographic array of potential suspects, including a photograph of defendant, on the night ofthe incident. After trial, defendant was convicted of burglary in the second degree and was sentenced toa prison term of 10 years, with five years of postrelease supervision. Defendant now appeals.
Defendant initially argues that County Court erred by denying his motion to dismiss the counts inthe indictment that charged him with burglary in the first degree (see Penal Law §140.30 [1] [deadly weapon], [3] [dangerous instrument]) and robbery in the first degree (seePenal Law § 160.15 [3]), claiming that the People failed to put forth any evidence before thegrand jury that the gun that defendant allegedly brandished during the break-in was either operable orloaded with live ammunition (see People v Shaffer, 66 NY2d 663, 664 [1985]). Even if wewere to conclude that County Court erred in denying this motion, defendant was not prejudiced by thisruling because the jury acquitted him of all of the charges that were the subject of this motion (seePeople v Brown, 83 NY2d 791, 794 [1994]; People v Thomas, 21 AD3d 643, 645 [2005], lv denied 6NY3d 759 [2005]).
Defendant also alleges that the People committed misconduct before the grand jury by questioninghim and another witness about defendant's alleged involvement in gang activity. While the People'scross-examination of defendant in this regard had little or no relevance to the issues raised during thatpresentation, it does not appear that such questioning resulted in any meaningful prejudice to defendantor impaired the integrity of the grand jury's proceedings (see CPL 210.35 [5]; People v Rivette, 20 AD3d 598, 601[2005], lv denied 5 NY3d 809 [2005]). Reversal of a criminal conviction obtained after trialbased on conduct that is alleged to have occurred before the grand jury, "is a drastic, exceptionalremedy and 'should thus be limited to those instances where prosecutorial wrongdoing, fraudulentconduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688[2005], lv denied 5 NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409[1996]; see People v Tatro, 53 AD3d781, 784 [2008]). Considering the other evidence presented to the grand jury—thetestimony of the two victims and the circumstances surrounding defendant's arrest—the isolatedreferences to gang affiliation did not rise to that level and, as such, are not grounds for setting asidedefendant's conviction after trial.[FN*]
Defendant also challenges his conviction for burglary in the second degree as against the weight ofthe credible evidence. Where, as here, an independent factual review of the credible evidence revealsthat a different result would not be unreasonable, this Court must then " 'weigh the relative. . . strength of conflicting inferences that may be drawn from the testimony' " (Peoplev Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291NY 55, 62 [1943]). Both victims not only knew defendant prior to this encounter, but each had ampleopportunity to observe the intruder and make an identification. Specifically, Pomeroy testified thatbefore the burglary, she knew defendant and identified him as the intruder to the police shortly after thecrime was committed and at the outset of their investigation. Williams testified that on the morning inquestion, he woke to "have him, [defendant], standing over my bed in a hoodie, black jacket, blackpants with a black baseball cap on and he is holding a gun," and that [*3]he could see defendant's "[w]hole face." Moreover, the fact that eachknew defendant prior to the encounter was confirmed by defendant in his testimony before the grandjury and at trial.
In addition, defendant presented evidence at trial to the effect that he was staying at a friend'shouse watching her children when the crimes alleged in the indictment were committed. While thiswitness acknowledged being with defendant, she could not confirm that they were together at thespecific time and date that the crimes in question were being committed.
Taking the evidence introduced at trial as a whole, and giving "great deference to the jury'sobservations of the witnesses and their demeanor, and the resulting credibility determinations," wecannot conclude that defendant's conviction for burglary in the second degree was against the weight ofthe credible evidence (People v Walton,16 AD3d 903, 904 [2005], lv denied 5 NY3d 796 [2005]; see People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d756 [2006]; see also People v Robinson,53 AD3d 681, 682 [2008]; People vDamphier, 51 AD3d 1146, 1147-1148 [2008]; People v Winchell, 46 AD3d 1096, 1097 [2007], lv denied 10NY3d 818 [2008]).
Defendant also alleges that during the trial, the prosecutor committed numerous instances ofmisconduct that served to profoundly prejudice him and deny him a fair trial. Specifically, defendantpoints to statements made by the prosecutor during the voir dire of the jury pool that the victims hadprior criminal records and asked members of the jury pool to, in effect, put themselves in their placeand assume that they had been the victim of such a crime. Initially, it is noted that in each instance,County Court sustained defendant's objections to this line of questioning and instructed the potentialjurors to disregard them. Equally important, those statements were not "so prejudicial as to deprive. . . defendant of a fair trial" and any prejudice that may have resulted was ameliorated bythe court's curative instructions (People v Quiller, 298 AD2d 712, 713 [2002], lvdenied 99 NY2d 618 [2003]; seePeople v Albanese, 38 AD3d 1015, 1019 [2007], lv denied 8 NY3d 981 [2007]; People v Kirker, 21 AD3d 588, 590[2005], lv denied 5 NY3d 853 [2005]). Nor do we find merit to defendant's claim that he wasdeprived of a fair trial by comments made by the Assistant District Attorney during his summation.While these statements would have been better left unsaid, they did not, given the full context of theprosecutor's closing arguments, go "beyond the bounds of fair commentary" (People v Silvestri, 34 AD3d 986, 987[2006]; see People v Westervelt, 47AD3d 969, 974 [2008], lv denied 10 NY3d 818 [2008]), and did not serve to deprivedefendant of a fair trial (see People vClark, 52 AD3d 860, 863 [2008]; People v Anderson, 48 AD3d 896, 897 [2008], lv denied 10NY3d 859 [2008]).
Defendant next complains about the testimony of Gerald Schatzel, a police detective, to the effectthat after Pomeroy and Williams had implicated defendant, "he prepared a photo[graphic]identification." Defense counsel immediately objected and moved for a mistrial. County Court denieddefendant's motion for a mistrial, but directed that the People no longer pursue that line of questioning.Since no evidence was introduced that defendant's picture was part of this photographic array, thisreference, while improper, constituted harmless error (see People v Williams, 11 AD3d 810, 811-812 [2004], lvdenied 4 NY3d 769 [2005]; People v Mosley, 296 AD2d 595, 596 [2002]).
Finally, we are unpersuaded that a 10-year prison sentence is harsh and excessive. Taking intoconsideration the nature of the crime for which defendant stands convicted, as well [*4]as his prior criminal record, which includes a sentence of probation withnumerous violations, we find neither an abuse of discretion by County Court nor the existence of anyextraordinary circumstances warranting a reduction of the sentence in the interest of justice (seePeople v Rivera, 301 AD2d 787, 790 [2003], lv denied 99 NY2d 631 [2003]).
Cardona, P.J., Peters, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: No claim has been made that anyreference to such activity occurred during the trial.