| People v Guy |
| 2012 NY Slip Op 01519 [93 AD3d 877] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eshon Guy,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered July 23, 2009, upon a verdict convicting defendant of the crimes of murder in the firstdegree, burglary in the first degree, attempted robbery in the first degree, criminal possession of aweapon in the second degree (two counts), reckless endangerment in the first degree andtampering with physical evidence.
Defendant appeals from his conviction of various crimes, including first degree murder,stemming from an April 2008 robbery and shooting death of a man in the City of Schenectady,Schenectady County. With the cooperation of several other individuals, all of whom testifiedagainst defendant at trial pursuant to cooperation agreements with the People, defendant was heldresponsible for plotting to rob the victim—a marihuana dealer—of drugs andmoney, burglarizing an apartment thought to belong to the victim, attempting to rob the victim atgunpoint, shooting in the direction of another individual, causing the victim's death by shootinghim in the back, and attempting to disassemble and conceal the murder weapon. Defendant wassentenced, as a second violent felony offender, to life in prison without parole on the murderconviction, and concurrent prison terms for the other convictions. We affirm.
Defendant first contends that he was deprived of his constitutional right to trial by a jury[*2]of his choice when County Court discharged a juror over hisobjection. To be sure, after the jury has been sworn, a juror may be dismissed over a defendant'sobjection only where the court finds that the juror is " 'grossly unqualified to serve' " (Peoplev Rodriguez, 71 NY2d 214, 219 [1988], quoting People v Buford, 69 NY2d 290, 298[1987]; see CPL 270.35 [1]). However, a court must discharge a juror when, after a"probing and tactful" in camera interview with the potentially unqualified juror and in thepresence of counsel (People v Buford, 69 NY2d at 299), it becomes obvious that the juror" 'possesses a state of mind which would prevent the rendering of an impartial verdict' "(id. at 298, quoting People v West, 92 AD2d 620, 622 [1983] [Mahoney, P.J.,dissenting], revd 62 NY2d 708 [1984]). Further, the trial court is accorded "greatdeference" in deciding whether a juror is grossly unqualified (People v Bradford, 300AD2d 685, 688 [2002], lv denied 99 NY2d 612 [2003]), because it "is in the bestposition to assess partiality in an allegedly biased juror" (People v Rodriguez, 71 NY2dat 219).
Here, the discharged juror sent a note to County Court that read: "I live on [Hamilton] Hill[in the City of Schenectady, Schenectady County,] and I recognize at least four people so far. I'velived on the Hill, in the same house, for 38 years. I have panic attacks I'm getting nervous about. Idon't know them by name, just their faces, and think they recognize me. Very possible somebodythat I will know. So very sorry." Defendant does not dispute that, upon receiving the note, thecourt conducted a sufficient in camera inquiry (compare People v Lapage, 57 AD3d 1233, 1236 [2008]). In thepresence of counsel, the court questioned the juror twice, giving counsel the opportunity to askquestions and to present arguments after each interview. The juror explained that for the pasteight years she has taken daily medication for anxiety and that she was experiencing increasedpanic attacks since being selected as a juror. When specifically asked whether the situation wouldaffect her ability to be fair, initially the juror's responses were equivocal but, when pressed as towhether her anxiety would permit her to deliberate fairly, she eventually stated, "I don't think Ican do it." She also told County Court that she could not guarantee that her stress would notinfluence her. Under these circumstances, we defer to the court's finding that the juror's fearswould interfere with her ability to carry out her duties as a juror in an impartial manner and, thus,we conclude that she was properly discharged on the ground of being grossly unqualified (seePeople v Galvin, 112 AD2d 1090, 1090-1091 [1985], lv denied 66 NY2d 919[1985]; see also People v Lennon,37 AD3d 853, 853 [2007], lv denied 9 NY3d 846 [2007]; People v Burse,299 AD2d 911, 912 [2002], lv denied 99 NY2d 613 [2003]; compare People vBuford, 69 NY2d at 299-300; People v Bradford, 300 AD2d at 688).
Next, defendant asserts that County Court improperly admitted testimony that revealed to thejury that he was incarcerated while awaiting trial and, thus, deprived him of his right to thepresumption of innocence. Contrary to the People's position, we find this issue preserved forappellate review. Defendant objected to the witness's testimony and, alternatively, requested thatthe testimony be limited in scope. After the court directed that the witness would be permitted totestify to a conversation he had with defendant in the jail infirmary, but could not testify that heknew defendant previously or that defendant was in jail at the time of the trial, the court thennoted to defense counsel, "You have an exception to my ruling." Under these circumstances, itwas not necessary for defendant to renew his objection to the testimony as limited (seeCPL 470.05 [2]; People v Cobos, 57 NY2d 798, 800 [1982]). Likewise, we do not findthat defendant waived this objection when, during cross-examination, defense counsel questionedthe witness about his incarceration. For the most part, counsel's questions about incarcerationwere directed at the witness's incarceration at other facilities prior to his incarceration withdefendant, and those questions that were related to defendant did not unduly emphasize the factthat he was incarcerated.[*3]
Turning to the merits, however, we find no error inCounty Court's admission of this testimony regarding defendant's incarcerated status as it was"inextricably intertwined" with other, relevant testimony (People v Conrow, 13 AD3d 1116, 1117 [2004], lv denied 4NY3d 829 [2005]) and served a legitimate state interest (see People v Jenkins, 88 NY2d948, 950-951 [1996]; compare People v Connor, 137 AD2d 546, 550 [1988]). Thepermitted testimony was carefully limited, revealing only the site of the conversation—thejail infirmary—which could not fairly be extracted from the highly probative testimonyregarding defendant's admissions. Further, defendant did not request a curative instruction,perhaps because such an instruction may needlessly have drawn the jury's attention to defendant'sincarceration. Under these circumstances, we hold that admission of the testimony was properand did not deprive defendant of due process or undermine the presumption of innocence (seePeople v Jenkins, 88 NY2d at 951; People v Rhodes, 49 AD3d 1022, 1023 [2008], lv denied10 NY3d 963 [2008]; see also People v Pelt, 161 AD2d 284, 284-285 [1990], lvdenied 76 NY2d 862 [1990]; People v Moore, 148 AD2d 754, 755 [1989], lvdenied 74 NY2d 667 [1989]).
We also reject defendant's assertion that County Court erred in excluding certain testimonyas hearsay. At trial, Jermel Hawkins and Jerome Jordan both testified, and each admitted his roleof participating in defendant's planned theft of the victim's drugs and money. Subsequent to theirtestimony and cross-examination, defendant requested that the court issue an order to producetwo witnesses, Deandre McCaskill and Eliel Pope, who had been incarcerated with Hawkins andJordan and whose proposed testimony might establish that Hawkins and Jordan were planning tocoordinate their testimony in order to place responsibility for the homicide on defendant.Defendant also suggested that McCaskill might testify that a police officer attempted to induceMcCaskill to make a false statement incriminating defendant. The court determined that suchtestimony constituted hearsay and denied defendant's applications.
With respect to the proffered testimony that Hawkins and Jordan were overheard discussingtheir intent to place the blame on defendant for the homicide, defendant argues that suchstatements were not inadmissible hearsay offered for the truth of the matter asserted but wereverbal acts or, alternatively, the res gestae of perjury. Under the verbal act doctrine, words whichaccompany certain acts or conduct are admissible as nonhearsay because they are not offered toprove the truth of the statement but, rather, to assist in giving legal significance to some"otherwise ambiguous conduct" (People v Acomb, 87 AD2d 1, 6 [1982]; see Matterof Alexander EE., 267 AD2d 723, 726 [1999]). The proffered testimony here was not offeredto explain any conduct but, rather, clearly offered for the truth of the matter asserted, i.e., thatHawkins and Jordan intended to place the blame on defendant. Further, although statements thatconstitute "part of the criminal res gestae" are admissible as nonhearsay (People v Lewis, 25 AD3d 824,826 [2006], lv denied 7 NY3d 791 [2006]), the party seeking to introduce res gestaestatements must establish a prima facie case of the substantive crime (see People v Caban, 5 NY3d 143,148 [2005]; People v Adames, 53AD3d 503 [2008], lv denied 11 NY3d 895 [2008]). The offer of proof here waslimited, and did not include any specific content suggesting that Hawkins and Jordan planned togive any false testimony at trial. Indeed, after they testified that defendant acted alone in thehomicide and that he had promised them that he would take responsibility for it, defendant had afull opportunity to cross-examine each of them. Accordingly, we hold that County Court did notabuse its discretion in precluding this hearsay testimony (see People v Hayes, 17 NY3d 46, 53 [2011], cert denied565 US —, 132 S Ct 844 [2011]).
We reach a contrary conclusion with respect to the proffered testimony of McCaskill [*4]that he was made promises by a police officer to induce falsetestimony against defendant. Such promises would not be offered for their truth, but for the factthat they were uttered (see People v Mertens, 97 AD2d 595, 596 [1983]). Nevertheless,we find that, to the extent that this testimony was improperly excluded, it was harmless error inlight of the overwhelming evidence adduced at trial against defendant.
Defendant also contends, pro se, that his first degree murder conviction and first degreeattempted robbery conviction were not supported by legally sufficient evidence and were againstthe weight of the evidence.[FN*]Given that the shooting was witnessed by several different people who saw defendant firemultiple shots in the victim's direction, contrary to defendant's assertion on appeal, we concludethat his criminal intent was readily inferable from his conduct (see People v Mullings, 23 AD3d756, 758 [2005], lv denied 6 NY3d 756 [2005]). Indeed, testimony established thatdefendant called out to the victim and, when the victim turned, shot at him from close range.Then, as the victim ran, defendant continued to shoot until he eventually inflicted a fatal woundin the victim's back. Given this evidence, we conclude that the jury's verdict on the murdercharge was not against the weight of the evidence (see People v Caruso, 34 AD3d 863, 864-865 [2006], lvdenied 8 NY3d 879 [2007]; People v Mullings, 23 AD3d at 758).
Likewise, we are not persuaded that defendant's attempted robbery conviction is unsupportedby legally sufficient evidence or against the weight of the evidence despite the absence of proofthat any property was taken from the victim (see Penal Law §§ 110.00,160.15 [4]). Defendant's intent to rob the victim was supported by overwhelming evidence attrial, including the testimony of Leryrn Berry, defendant's paramour, that she and defendant firstplanned to burglarize the victim's apartment, and then, after a botched burglary of the wrongapartment, the scheme escalated into robbing the victim at gunpoint. In furtherance of this plan,Berry accompanied the victim while he conducted marihuana sales, contacting defendant by textmessage throughout the day to keep him apprised of the victim's whereabouts until he arrived at adesirable location for the robbery. This testimony was corroborated by several other witnesseswho heard defendant plan the robbery. Further, although defendant ultimately ran from the sceneafter shooting the victim without taking property, his act of confronting the victim at gunpoint inaccordance with the previously planned robbery is ample evidence of attempt in support of theverdict (see People v Heath, 49AD3d 970, 971 [2008], lv denied 10 NY3d 959 [2008]; People v Starks, 46 AD3d 1426,1427 [2007], lv denied 10 NY3d 817 [2008]).
Finally, we also reject defendant's assertion that the Schenectady County Public Defender'sOffice improperly simultaneously represented him and two of the individuals who assisted him inthe burglary. After this conflict was brought to County Court's attention, the court relieved thePublic Defender's Office and assigned the Conflict Defender's Office to the [*5]charges pending against defendant at that time. As any potentialconflict was addressed promptly—before the murder and robbery indictment wasfiled—we discern no prejudice to defendant (see People v Smalls, 282 AD2d 873,874 [2001], lv denied 97 NY2d 643 [2001]).
Mercure, A.P.J., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: With respect to the murderconviction, defendant failed to preserve the argument now asserted on appeal, i.e., that there wasinsufficient proof of the element of intent (see People v Barringer, 54 AD3d 442, 443 [2008], lvsdenied 11 NY3d 830 [2008]; Penal Law § 125.27 [1]). However, as defendant alsoargues that his murder conviction was against the weight of the evidence, we must necessarilydetermine whether all the elements of that crime were sufficiently proven at trial (see People v Danford, 88 AD3d1064, 1065 [2011]).