| People v Peele |
| 2010 NY Slip Op 03804 [73 AD3d 1219] |
| May 6, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kenney R.Peele, Also Known as KD, Also Known as Mike, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Benjamin K. Bergman of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 20, 2007, upon a verdict convicting defendant of the crimes of murder in thesecond degree and criminal possession of a weapon in the second degree.
After a disputed dice game at a bar, the victim punched defendant's friend and defendantbroke up the fight. Several days later, defendant accosted the victim, punched him in the face andthen shot him four times. Witnesses saw a person matching defendant's description leaving thearea with a gun and later disposing of a gun. After trial, a jury convicted him of murder in thesecond degree and criminal possession of a weapon in the second degree. Defendant appeals.
County Court did not abuse its discretion by ruling that the People could cross-examinedefendant about three prior felony convictions if he testified. The court struck an appropriatebalance by prohibiting use of two prior convictions and permitting use of three convictions(robbery, attempted robbery and grand larceny) which, despite their remoteness in time, wereindicative of defendant's willingness to place his own interests ahead of those of others andsociety (see People v Mitchell, 57AD3d 1308, 1311 [2008]; People v Donaldson, 46 AD3d [*2]1109, 1110 [2007]; People v Grady, 40 AD3d 1368, 1370 [2007], lv denied 9NY3d 923 [2007]). As the court carefully balanced the probative value and relevance todefendant's credibility against the potential prejudice to defendant from use of each priorcriminal conviction, the Sandoval ruling was proper.
County Court appropriately determined that juror No. 7 could continue serving because hewas not grossly unqualified to serve. During trial, the People added a deputy sheriff to theirwitness list to testify regarding a threat that defendant allegedly made toward another witness.The deputy notified the court that juror No. 7 was a distant relation by marriage, lived on thesame street and had engaged in a real estate transaction with him in the past. After questioningthe sworn juror, who assured the court that he could fairly and impartially evaluate the deputy'stestimony, the court correctly determined not to remove the juror (see CPL 270.35 [1];People v Buford, 69 NY2d 290, 298-299 [1987]; People v Garraway, 9 AD3d 506, 507 [2004], lvs denied 3NY3d 674, 740 [2004]).
The evidence was legally sufficient to establish defendant's guilt. While no one actually sawdefendant shoot the victim, a witness testified that, through a window, he could see defendantand the victim from mid-torso and higher. This witness saw defendant punch the victim, thenheard quick gunshots. Witnesses saw defendant, or someone matching his description, leavingthe scene while placing a gun or object in his waistband, and other witnesses later saw a personmatching defendant's description disposing of a gun in a vacant lot. That gun was recovered bypolice and identified as the murder weapon through expert firearms evidence. Still otherwitnesses testified about statements that defendant made to them implicating himself in theshooting. Medical and firearms evidence proved that the victim was struck with four bullets,resulting in his death. Defendant's intent to kill can be inferred from his statements to otherwitnesses and his firing of four shots at close range. The evidence was legally sufficient toestablish defendant's guilt of both crimes (see People v Oxley, 64 AD3d 1078, 1079-1080 [2009], lvdenied 13 NY3d 941 [2010]; People v Bass, 277 AD2d 488, 496-497 [2000], lvdenied 96 NY2d 780 [2001]). While defendant contends that the People did not disprove thedefense of justification, he did not assert that defense at trial or raise sufficient facts to support it(cf. People v McManus, 67 NY2d 541, 546-547 [1986]; People v Steele, 26NY2d 526, 528 [1970]). Had he requested a justification charge, it should have been deniedbecause the evidence showed that defendant was the initial aggressor and, even if the victim diddisplay a knife, defendant made no attempt to retreat (see Penal Law § 35.15 [1][b]; [2] [a]; People v Ham, 67AD3d 1038, 1039 [2009]).
Defendant was not deprived of a fair trial by the admission of certain evidence. Police tapeda phone conversation between defendant and an informant. Although the informant stated that hecould not remember what was said on the tape, which he had listened to previously, herecognized and identified the voices on the tape and testified that the tape contained a true andaccurate segment of a conversation between himself and defendant. This testimony provided anadequate foundation for the admission of the tape (see People v Jackson, 43 AD3d 488, 490 [2007], lv denied9 NY3d 962 [2007]). The substance of that conversation was admissible because it could beinterpreted as an admission by defendant that he had killed the victim. Also admissible wastestimony regarding defendant's alleged threat against a witness in the holding cell after thewitness testified; this threat was probative because it could be interpreted to reflect defendant'sconsciousness of guilt (see People vRamadhan, 50 AD3d 339 [2008]; People v De Vivo, 282 AD2d 770, 772[2001], lv denied 96 NY2d 900 [2001]).[*3]
Defendant now contends that the DNA evidence shouldnot have been admitted because the forensic scientist who did the testing failed to explaininclusion or exclusion of an individual in a mixture profile based on statistics such as aprobability of exclusion or likelihood ratio. As defendant did not object to admission of the DNAevidence on that basis, his current argument is unpreserved for appellate review (see People vAntongiorgi, 242 AD2d 578 [1997], lv denied 91 NY2d 832 [1997]).
County Court did not abuse its discretion in permitting the People to elicit from defendant'sparamour that she sold drugs at his request. "The court may permit further inquiry on a subject ifthe defense 'opens the door' by providing incomplete or misleading information, although suchinquiry must be limited to only such 'otherwise inadmissible evidence [as] is reasonablynecessary to correct the misleading impression' " (People v Greene, 13 AD3d 991, 993 [2004], lv denied 5NY3d 789 [2005], quoting People v Massie, 2 NY3d 179, 184 [2004]; see People v Mullings, 23 AD3d756, 759 [2005], lv denied 6 NY3d 756 [2005]). When cross-examining theparamour, defense counsel attacked her credibility through questions about her pending chargesfor selling narcotics. Counsel questioned whether her arrest truly stemmed from her firstnarcotics sale, commenting that it was quite a coincidence and implying that she sold drugs onother occasions. The court was therefore within its discretion to permit the People to correct themisleading impression created by defense counsel—that the paramour was a seasoneddrug dealer—by raising otherwise inadmissible evidence of defendant's own involvementin selling drugs. The People reasonably clarified the paramour's involvement by eliciting that shedelivered the drugs to defendant's associates at defendant's request, then wired the money to himin Brooklyn as he had directed. This testimony explained the paramour's conduct, while alsoexplaining that defendant was liquidating his drug supply in the area of the murder and neededthe money in the area where he had relocated, indicating flight as evidence of consciousness ofguilt (cf. People v McDuffie, 26AD3d 667, 668-669 [2006], lv denied 7 NY3d 759 [2006]). Under thecircumstances, the court did not abuse its discretion in permitting the People to complete thenarrative by clarifying the paramour's involvement so as to prevent the jury from being misledby defense counsel's cross-examination of her (see People v Massie, 2 NY3d at 184;People v Greene, 13 AD3d at 993).
Defendant received the effective assistance of counsel. Contrary to defendant's contentionthat counsel erred in not requesting a justification charge, such a charge, as noted above, was notwarranted by the facts (see Penal Law § 35.15 [1] [b]; [2] [a]; People vHam, 67 AD3d at 1039). While defendant could possibly have testified that the victimpulled a knife on him, we find no error in counsel's choice not to pursue that risky course topotentially establish a justification defense (see People v Njasang Nji, 66 AD3d 538, 539 [2009], lvdenied 13 NY3d 940 [2010]). Similarly, we will not second-guess counsel's choice to attackthe DNA evidence through cross-examination based on lack of statistical proof concerningexclusion, rather than attempting to prevent its admission into evidence (cf. People vVega, 225 AD2d 890, 893 [1996], lv denied 88 NY2d 943 [1996]). Counsel mayhave strategically preferred to allow admission of the DNA evidence because defendant's DNAprofile was not positively matched to anything, and he was excluded as a contributor tonumerous items. Failure to object to the continued service of juror No. 7 was also not errorbecause such an objection, as explained above, would not have been successful. While defendantnow contends that counsel was deficient by not moving to suppress evidence found in his sister'shome, the record does not indicate any basis to undermine the search warrant that authorized thesearch and seizure of evidence. Viewing the law, evidence and circumstances in totality, counselprovided defendant with meaningful representation (see People v Lowin, 36 AD3d 1153, 1156 [2007], lvdenied 9 [*4]NY3d 847 [2007]).
Cardona, P.J., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.