| People v McCall |
| 2010 NY Slip Op 06255 [75 AD3d 999] |
| July 29, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NahjaliekMcCall, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered July 15, 2008, upon a verdict convicting defendant of the crime of murder in the seconddegree.
Defendant, who was 15 years old at the time of the incident, was convicted of murder in thesecond degree as a juvenile offender for shooting another youth at a party. County Courtimposed a sentence of 15 years to life in prison. Defendant appeals.
The conviction was not against the weight of the evidence. Because a different result wouldnot have been unreasonable, this Court must " 'weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony,' " while giving deference to the jury's credibility determinations (People vBleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller,291 NY 55, 62 [1943]; see People vDavis, 72 AD3d 1274, 1276 [2010]). Here, several members of the victim's familytestified that defendant made threats against the victim and his brother in the weeks prior to theshooting, including displaying a gun, saying that the victim would get hurt and stating thatsomething would happen on August 18. That date was significant as the birthday of defendant'sslain cousin. The victim here was shot in the early morning hours of August 18, 2007. Anindividual at the party testified that, although the party was dark and the shooter had the hood onhis sweatshirt pulled tight, she had seen defendant at the party earlier that night and recognized[*2]the shooter as defendant by his distinctive sweatshirt. Shesaw defendant standing near the victim, heard a shot, turned around and saw defendant bringinghis arm down like he had shot in the air, then saw defendant run out of the apartment. Shellcasings were located outside, in an area that a key defense witness identified as the locationwhere shots were fired and where defendant testified that he ran. Those casings matched the solecasing discovered inside the apartment. An inmate at the jail also testified that defendant braggedabout shooting the victim and revealed certain details about the crime.
Defendant presented a witness who testified that defendant was outside with her at the timeof the shooting. Defendant testified similarly, as well as denying that he threatened the victim orhis family, confessed to the inmate at the jail or shot the victim. After requesting read-backs oftestimony from two key witnesses, the jury obviously credited the prosecution witness whoidentified defendant as the shooter over the defense witness who testified that she was outsidewith defendant at the time of the shooting. Accepting the jury's credibility determinations, wecannot say that the verdict was against the weight of the evidence.
Defendant opened the door to testimony that he refused to provide a written statement to thepolice. The People normally would not have been able to elicit testimony indicating thatdefendant refused to supply a written statement after his mother had invoked his right to remainsilent (see People v Von Werne, 41 NY2d 584, 587-588 [1977]). By questioning adetective regarding the police department's policy on recording statements, however, defendantopened the door to the prosecution rehabilitating the witness by letting him explain thedepartment's policy to allow a defendant to provide a written statement, that the policy wasfollowed here by offering defendant such an opportunity and that defendant declined (seePeople v Hightower, 237 AD2d 166, 166 [1997], lv denied 89 NY2d 1094 [1997];People v Wolcott, 111 AD2d 513, 514-515 [1985]). County Court gave prompt andappropriate limiting instructions that defendant had a constitutional right to refuse to give astatement and the testimony was to be used only in evaluating the department's policy, curingany prejudice to defendant (comparePeople v Knowles, 42 AD3d 662, 665 [2007]).
County Court appropriately admitted the Miranda waiver form at theHuntley hearing and at trial. The form was necessarily admissible at the hearing todetermine whether defendant's other statements were suppressible (see People v Velez, 70 AD3d1191, 1192 [2010]). "[S]tatements made by a defendant in waiving his [or her]Miranda rights . . . are not admissions or statements encompassed withinthe notice requirements of CPL 710.30" (People v Grimes, 162 AD2d 1031, 1032[1990], lv denied 76 NY2d 893 [1990]; see People v Patterson, 184 AD2d 1013,1014 [1992], lv denied 80 NY2d 1029 [1992]; see also People v Rodney, 85NY2d 289, 291-293 [1995]). Thus, regardless of the lack of CPL 710.30 notice referring to anywritten statement, the written Miranda waiver was admissible.
Defendant was not denied a fair trial by the prosecution's unsuccessful attempt to show thathe previously stabbed the victim's brother. Although the People called the victim's brother to thestand, he testified that the person who stabbed him on two separate occasions was not present inthe courtroom. County Court granted defendant's motion to strike the witness's testimony on thatsubject and immediately issued the jury an appropriate instruction (see People v Dolan,172 AD2d 68, 76 [1991], lv denied 79 NY2d 946 [1992]). No proof of defendant'scriminal or violent propensities could have been inferred from testimony regarding crimes inwhich he was not involved (see Peoplev Arafet, 13 NY3d 460, 465 [2009]). Defendant may even have benefitted from suchtestimony because it showed that other people bore grudges against the [*3]victim's family and contradicted testimony from the victim's motherthat defendant had stabbed her son.
Defendant was provided with meaningful representation. Counsel did not object during theprosecutor's summation, thus not preserving arguments concerning any prejudicial comments (see People v Williams, 8 NY3d854, 855 [2007]). The lack of objections did not deprive defendant of a fair trial, however,because the statements that defendant now points to as improper were mostly fair comment onthe evidence or a response to defense counsel's summation (see People v Cherry, 46 AD3d 1234, 1237-1238 [2007], lvdenied 10 NY3d 839 [2008]), and the few improper comments were not so pervasive orflagrant as to require a reversal (seePeople v Hunt, 39 AD3d 961, 964 [2007], lv denied 9 NY3d 845 [2007]).Defendant also contends that counsel was ineffective by failing to request a limiting instructionregarding gang-related evidence. Defense counsel elicited such proof in an apparent strategy toshow that the victim may have been killed due to gang conflicts, and that defendant was not amember of a gang but instead was friendly with people from different factions. We will notsecond-guess this strategic decision (see People v Cherry, 46 AD3d at 1238). Counselalso apparently made a strategic decision against requesting an alibi charge, as noted by hisobjection to the alibi charge submitted by the prosecution. In any event, the court's charge as awhole effectively established the People's burden to prove all elements, including that defendantwas the perpetrator (see People vGreen, 31 AD3d 1048, 1051 [2006], lv denied 7 NY3d 902 [2006]).Considering the representation as a whole, defendant received the effective assistance of counsel.
We have reviewed defendant's remaining contentions and find them to be without merit.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.