| People v Dennis |
| 2012 NY Slip Op 00548 [91 AD3d 1277] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Brandon Dennis, Appellant. |
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered May11, 2009. The judgment convicted defendant, upon a jury verdict, of murder in the second degree(three counts), robbery in the first degree (three counts), attempted robbery in the first degree,criminal use of a firearm in the first degree, criminal possession of a weapon in the second degreeand assault in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously modified on thelaw by directing that the sentences imposed on counts 1 through 3 of the indictment shall runconcurrently with the sentence imposed on count 12 of the indictment and as modified thejudgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, three counts each of murder in the second degree (Penal Law 125.25 [1], [3][intentional and felony murder]) and robbery in the first degree ( 160.15 [2]-[4]). We rejectdefendant's contention that County Court erred in giving a jury instruction on consciousness ofguilt. According to the evidence presented by the People at trial, defendant became a suspect inthe murder approximately one month after it occurred, and the police attempted to locate him atthe address listed on his driver's license, as well as at the addresses of his former and currentgirlfriend. The police also informed defendant's family members that they were looking for him.Defendant was arrested almost six months later, when the police received information concerninghis whereabouts. Defendant was driving his current girlfriend's vehicle and rammed it into apolice vehicle before surrendering. We conclude that the People thereby presented evidencewarranting the instruction on consciousness of guilt (see People v Solimini, 69 AD3d 657[2010], lv denied 14 NY3d 893 [2010]; People v Young, 51 AD3d 1055, 1056-1057 [2008], lvdenied 11 NY3d 796 [2008]) and, contrary to defendant's contention, the People were notrequired to prove that defendant was aware that the police were searching for him. Defendant did not preserve for our review his further contention that the admission of hiscodefendant's statement violated the Confrontation Clause (see People v Pearson, 82 AD3d 475[2011], lv denied 17 NY3d 809 [2011]). In any event, that contention is without merit. Thecodefendant's statement did not implicate defendant in any wrongdoing and thus did not deprivedefendant of his US Constitution Sixth Amendment right to confront witnesses against him (seePeople v Mack, 89 AD3d 864, 865-866 [2011]; People v Lewis, 83 AD3d 1206, 1208-1209[2011], lv denied 17 NY3d 797 [2011]). We reject defendant's contention that the court erred inallowing a police investigator to testify for the People that he saw defendant and the codefendanttogether earlier on the day of the murder. Inasmuch as the court prohibited the police investigatorfrom testifying that he purchased drugs from the codefendant during that encounter, we rejectdefendant's contention that the testimony constituted evidence of a prior bad act of defendant.Even assuming, arguendo, that the jury would infer that defendant had committed a prior bad actbased on the investigator's testimony that he had seen defendant and the codefendant together, weconclude that the court did not err in allowing that testimony. The police investigator's testimonyserved as background information and completed the narrative of the events (see People vLeeson, 48 AD3d 1294, 1296 [2008], affd 12 NY3d 823 [2009]; see generally People v Resek, 3NY3d 385, 390 [2004]), i.e., it informed the jury that defendant and the codefendant weretogether hours before the murder occurred and explained how the police identified defendant as asuspect in the case. Defendant further contends that the court erred in allowing a police lieutenantto testify that two police departments assembled photo arrays with defendant's photograph, thusallegedly giving rise to the inference that defendant committed prior bad acts by virtue of hishaving been arrested on two prior occasions. Defendant's contention is not preserved for ourreview (see People v Woods, 72 AD3d 1563, 1564 [2010], lv denied 15 NY3d 811 [2010]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). We note, however, that testimony regarding the pretrialidentification of defendant in a photo array was first elicited by defense counsel during hiscross-examination of a prosecution witness. Defendant also failed to preserve for our review his contention that the court erred infailing to discharge two sworn jurors (see People v Sanderson, 68 AD3d 1716, 1717 [2009], lvdenied 14 NY3d 844 [2010]). In any event, the court did not err in allowing the jurors to remainon the jury. The jurors were not "grossly unqualified to serve in the case" (CPL 270.35 [1]),inasmuch as they did not " 'possess[ ] a state of mind which would prevent the rendering of animpartial verdict' " (People v Buford, 69 NY2d 290, 298 [1987]; see People v Clark, 28 AD3d1190 [2006]). Although defendant failed to preserve for our review his contention that twoinstances of alleged prosecutorial misconduct deprived him of a fair trial (see People v Heide, 84NY2d 943, 944 [1994]), we conclude in any event that the prosecutor did not in fact engage inany misconduct. We reject defendant's further contention that he was denied the right to effectiveassistance of counsel based on the failure of defense counsel, inter alia, to object to certaintestimony and the admission of the autopsy photographs in evidence. Rather, viewing defensecounsel's representation as a whole, we conclude that defendant received effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). In addition, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We agree with defendant, however, that the sentence is illegal in part insofar as thesentences for the first three counts of the indictment, charging robbery in the first degree, mustrun concurrently with rather than consecutively to count 12 of the indictment, charging felonymurder. We therefore modify the judgment accordingly. As we held on the codefendant's appeal,"the robbery was the underlying felony for that count of felony murder and thus constituted amaterial element of that offense" (People v Osborne, 88 AD3d 1284, 1286 [2011]). We rejectdefendant's further contentions that the sentence as modified is illegal or is unduly harsh orsevere. Finally, we note that the certificate of conviction does not reflect that defendant wasconvicted of murder in the second degree under count 13 of the indictment, and it fails to recitethat the sentences imposed on the first three counts of the indictment shall run concurrently witheach other but consecutively to the sentences imposed on counts 11 and 13 of the indictment. Thecertificate of conviction must therefore be amended accordingly (see e.g. People v Carrasquillo,85 AD3d 1618, 1620 [2011], lv denied 17 NY3d 814 [2011]). Present Scudder, P.J., Smith,Centra, Lindley and Gorski, JJ.