| People v Davis |
| 2009 NY Slip Op 09745 [68 AD3d 1653] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ToussaintDavis, Also Known as John T. Healy and as Toussaint Martin,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April19, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, robbery in the first degree (12 counts) and robbery in the second degree (six counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that all sentences shall run concurrently with respect to each other and as modifiedthe judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofone count of murder in the second degree (Penal Law § 125.25 [3]), 12 counts of robberyin the first degree (§ 160.15 [1], [2]) and six counts of robbery in the second degree(§ 160.10 [1]). We reject defendant's contention that County Court erred in refusing todismiss the indictment based on the fact that a sitting supreme court justice served as theforeperson of the grand jury. A grand jury is "impaneled by a superior court and constitut[es] apart of such court" (CPL 190.05), but a superior court is defined as "[t]he supreme court" or "[a]county court," rather than as a single entity comprised of individual justices or judges (CPL10.10 [2] [a], [b]). Thus, contrary to defendant's contention, it cannot be said that every supremecourt justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05). Weconclude that the supreme court justice who served as the grand jury foreperson was not requiredto recuse herself because the record establishes that she was not a part of the superior court thatimpaneled the grand jury herein. We further reject defendant's contention that the participation ofa sitting supreme court justice on a grand jury was improper. The Legislature repealed JudiciaryLaw § 511 (4), which listed "a judge of the unified court system" as a person disqualifiedfrom serving as a juror. It is within the province of the Legislature to modify, "withinconstitutional limits . . . , the scope of the [g]rand [j]ury's power, as well as therules governing its formation" (People v Williams, 73 NY2d 84, 88 [1989]). To theextent that defendant challenges the constitutionality of the repeal of Judiciary Law § 511(4), that challenge is not properly before us in the absence of any indication in the record that theAttorney General was given the requisite notice of that challenge (see Executive Law§ 71 [1]; People v Schaurer,32 AD3d 1241 [2006]). Even assuming, arguendo, that [*2]such notice was provided, we would nevertheless conclude thatdefendant has not articulated a cognizable basis for that challenge and thus has failed to meet hisburden of "surmount[ing] the presumption of constitutionality accorded to legislative [action] byproof beyond a reasonable doubt" (St.Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139, 143 [2007], appealdismissed 9 NY3d 988 [2007], lv denied 10 NY3d 702 [2008] [internal quotationmarks omitted]; see generally Matter of Moran Towing Corp. v Urbach, 99 NY2d 443,448 [2003]).
We reject defendant's contention that the court erred in refusing to dismiss the indictmentpursuant to CPL 210.20 (1) (c) on the ground that the grand jury proceeding was defective.Inasmuch as the grand jury foreperson was qualified to serve as a juror pursuant to JudiciaryLaw §§ 500 and 510, as well as CPL 190.20 (2) (b), we conclude that the grand jurywas not "illegally constituted" and therefore was not defective pursuant to CPL 210.35 (1).Defendant's further contention that the grand jury proceeding was defective pursuant to CPL210.35 (5) lacks merit because defendant failed to meet his burden of establishing "the existenceof defects impairing the integrity of the [g]rand [j]ury proceeding and giving rise to a possibilityof prejudice" (People v Santmyer, 255 AD2d 871, 871-872 [1998], lv denied 93NY2d 902 [1999]).
In addition, we reject defendant's contention that the court erred in instructing the jury withrespect to the "immediate flight" element of murder in the second degree (Penal Law §125.25 [3]). The court properly instructed the jury that it could consider "any . . .evidence presented during the trial that [it found] relevant on the issue of immediate flight," andthe court did not determine as a matter of law that any police custody or arrest of defendant priorto the murder was irrelevant (cf. People v Irby, 47 NY2d 894, 895 [1979]; seegenerally People v Gladman, 41 NY2d 123, 129 [1976]). Defendant's contention that thecourt erred in admitting in evidence a glove found on the floor of a patrol vehicle afterdefendant's arrest and transport to the police station is also without merit. "Where, as here, thecircumstances provide reasonable assurances of the identity and unchanged condition of theevidence, any deficiencies in the chain of custody go to the weight of the evidence and not itsadmissibility" (People vWitherspoon, 66 AD3d 1456, 1459 [2009] [internal quotation marks omitted]; see People v Hawkins, 11 NY3d484, 494 [2008]).
We agree with defendant, however, that the court erred in failing to direct that all sentencesshall run concurrently with respect to each other, and we therefore modify the judgmentaccordingly. The sentences imposed on the counts of robbery in the first and second degreesmust run concurrently with the sentence imposed on the count of felony murder because theindictment did not specify which of the robbery counts served as the predicate for the felonymurder count (see People v Parks, 95 NY2d 811, 814-815 [2000]; People v Parton, 26 AD3d 868,870 [2006], lv denied 7 NY3d 760 [2006]). Further, the sentences imposed on the 18robbery counts must run concurrently because the robberies were committed through the sameact or omission (see Penal Law § 70.25 [2]; Parton, 26 AD3d at 869-870).In view of our determination, we do not address defendant's remaining contention.Present—Scudder, P.J., Fahey, Peradotto and Gorski, JJ.