| People v Thompson |
| 2009 NY Slip Op 01023 [59 AD3d 1115] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JustinThompson, Also Known as"Deshawn," Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), renderedDecember 29, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thefirst degree (three counts), murder in the second degree (two counts), attempted murder in thesecond degree (two counts) and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, interalia, three counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]), andtwo counts each of murder in the second degree (§ 125.25 [1]) and attempted murder inthe second degree (§§ 110.00, 125.25 [1]), defendant contends that County Courterred in refusing to sever the trials of defendant and the codefendant. We reject that contention.Joint trials are preferred where, as here, the same evidence will be used and the defendant andcodefendant are charged with acting in concert (see People v Mahboubian, 74 NY2d174, 183 [1989]). Contrary to defendant's contention, severance was not "compelled" inasmuchas the core of each defense was not in irreconcilable conflict with the other (id. at 184;cf. People v Kyser, 26 AD3d839, 840 [2006]). Contrary to the further contention of defendant, there was no violation ofhis rights under Bruton v United States (391 US 123 [1968]) or Crawford vWashington (541 US 36 [2004]). Nothing in the trial testimony established that thecodefendant made any statements or took any action that implicated defendant (cf.Kyser, 26 AD3d 839 [2006]).
We reject the contention of defendant that the court erred in refusing to suppressidentification testimony. Having viewed the photographic arrays shown to the witnesses, weconclude "that the viewer's attention [would not be] drawn to any one photograph in such a wayas to indicate that the police were urging a particular selection" (People v Quinones, 5 AD3d 1093,1093 [2004], lv denied 3 NY3d 646 [2004]; see People v Davis, 50 AD3d 1589, 1590 [2008], lv denied11 NY3d 787 [2008]), and there is no evidence in the record to support defendant's speculativeassertion that witnesses may have conferred with each other between identification procedures(cf. People v Ocasio, 134 AD2d 293, 294 [1987]). Although defendant also contends thatthe court erred in refusing to suppress his statements, we note that defense counsel "conceded thepropriety of the suppression ruling" with respect to the statements and thus defendant'scontention is not [*2]preserved for our review (People vWilliams, 143 AD2d 162, 163 [1988]; see People v Wells, 288 AD2d 408 [2001]).In any event, we reject that contention. It is undisputed that defendant was notMirandized and was subjected to interrogation at the time of the statements. Thedispositive issue, however, is whether defendant was in custody, inasmuch as Mirandawarnings are required only when a person is subjected to custodial interrogation (seegenerally People v Huffman, 41 NY2d 29, 33 [1976]). Here, the court credited the testimonyof the police officers in determining that defendant was not in custody when he was questionedby the police. Affording great deference to the credibility determinations of the hearing court(see People v Prochilo, 41 NY2d 759, 761 [1977]), we conclude that the testimony of thepolice officers established that a reasonable person, innocent of any crime, would not havebelieved that he or she was in custody at the time of the questioning (see generally People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]).
Contrary to the further contention of defendant, he was not entitled to a pretrial hearingconcerning the testimonial competency and capacity of the child witness. There was no "'nonspeculative' " evidence of any improper influence exerted on that witness and thus no basisfor a pretrial hearing to determine whether his testimony at trial would be tainted (People vKemp, 251 AD2d 1072, 1072 [1998], lv denied 92 NY2d 900 [1998]; see People v Montalvo, 34 AD3d600, 601 [2006], lv denied 8 NY3d 883 [2007]; People v Nickel, 14 AD3d 869, 870-871 [2005], lv denied4 NY3d 834 [2005]). For the same reasons, the court properly denied defendant's request for apretrial psychological examination of that witness (see generally People v Brown, 7 AD3d 726 [2004], lvdenied 3 NY3d 671 [2004]). To the extent that defendant contends on appeal that the court"erred in failing to timely permit [defendant] to retain and make use of expert testimony relativeto the identification of [defendant] by [the child witness]," we note that defendant did not join inthe codefendant's request to retain an expert to review the mental health records of that witness.Defendant thus failed to preserve that contention for our review (see generally People vCook, 286 AD2d 917 [2001], lv denied 97 NY2d 680 [2001]; People vGreening, 254 AD2d 739 [1998], lv denied 92 NY2d 1032 [1998]). In any event, forthe same reasons previously noted, the contention lacks merit.
Defendant's further challenge to the capacity of the child witness to testify as a swornwitness lacks merit. The child witness was 11 years old at the time of trial and thus waspresumed to have the capacity to testify under oath (see CPL 60.20 [1], [2]). In anyevent, " '[t]he determination of the trial court [with respect to witness competency] should besustained particularly where the testimony is received and the weight to be given it is left to thejury, unless there is a clear abuse of discretionary power' " (see People v Parks, 41 NY2d36, 46 [1976]), and we perceive no abuse of discretion on the record before us. The trial courtwas in the best position "to observe manner, demeanor and presence of mind" of the witness andto make appropriate inquiries (id.).
We further conclude that the court did not improvidently exercise its discretion in denyingdefendant's request for additional peremptory challenges during the joint trial (see People v Rolle, 4 AD3d 542,544 [2004], lv denied 3 NY3d 647 [2004]; cf. People v Hines, 109 AD2d 893[1985], lv denied 66 NY2d 764 [1985]), and we conclude that the court properly denieddefendant's Batson challenge. The prosecutor set forth race-neutral reasons for strikingthe prospective juror in question, inasmuch as the prospective juror had a prior conviction aswell as a relative with a prior conviction (see People v Cuthrell, 284 AD2d 982, 982-983[2001]; see generally People vGajadhar, 38 AD3d 127, 137 [2007], affd 9 NY3d 438 [2007]).
Contrary to defendant's contention, the conviction is supported by legally sufficient evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Further, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Contrary to defendant's further contention,because a trial court has[*3]"the inherent power . . .to control its own calendar" (People v Trait, 70 AD2d 1057, 1057 [1979]; see Peoplev Cangiano, 40 AD2d 528, 529 [1972]), we conclude that the court did not abuse orimprovidently exercise its discretion in refusing to adjourn sentencing to enable defendant toprepare a written CPL article 330 motion (see People v Williams, 302 AD2d 903 [2003];People v Cummings, 284 AD2d 907 [2001], lv denied 97 NY2d 640, 680[2001]). Finally, we conclude that the sentence of life without parole is not unduly harsh orsevere. Defendant was convicted of attempting to kill two children and killing four people, oneof whom was holding her 11-month-old baby in her arms. Present—Smith, J.P., Centra,Fahey, Peradotto and Pine, JJ.