| People v Williams |
| 2012 NY Slip Op 09212 [101 AD3d 1730] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Isiah Williams,Appellant. (Appeal No. 2.) |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered July 24,2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a forgedinstrument in the second degree (four counts) and criminal possession of stolen property in the fifthdegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating the sentence and as modified the judgment is affirmed, and the matter is remitted to MonroeCounty Court for resentencing in accordance with the following memorandum: In appeal No. 2,defendant appeals from a judgment convicting him upon a jury verdict of four counts of criminalpossession of a forged instrument in the second degree (Penal Law § 170.25) and one count ofcriminal possession of stolen property in the fifth degree (§ 165.40). In appeal No. 3, he appealsfrom a judgment convicting him upon a jury verdict of eight counts of criminal possession of a forgedinstrument in the second degree (§ 170.25), two counts of petit larceny (§ 155.25), andone count each of grand larceny in the third degree (§ 155.35 [1]), identity theft in the firstdegree (§ 190.80 [2]), and scheme to defraud in the first degree (§ 190.65 [1] [b]).
We first address the contentions of defendant with respect to appeal No. 2 that are preserved forour review. Contrary to defendant's contention, defense counsel neither became a witness againstdefendant nor made any statements adverse to him (see People v Viscomi, 286 AD2d 886,886 [2001], lv denied 97 NY2d 763 [2002]; People v Caple, 279 AD2d 635, 636[2001], lv denied 96 NY2d 798 [2001]; see also People v Rivers, 296 AD2d 861,862 [2002], lv denied 99 NY2d 539 [2002]). We reject defendant's contention that CountyCourt's pretrial Molineux ruling constitutes an abuse of discretion (see People vMolineux, 168 NY 264, 293-294 [1901]; People v Siplin, 66 AD3d 1416, 1417 [2009], lv denied 13NY3d 942 [2010]; People v Gonzalez,62 AD3d 1263, 1265 [2009], lv denied 12 NY3d 925 [2009]). Moreover, the court'slimiting instruction "served to alleviate any potential prejudice resulting from the admission of theevidence" (People v Alke, 90 AD3d943, 944 [2011], lv denied 19 NY3d 994 [2012]; see People v Freece, 46 AD3d 1428, 1429 [2007], lv denied10 NY3d 811 [2008]). Defendant's further contention that the court abused its discretion in overrulingdefense counsel's objection to the scope of the People's redirect examination of a witness lacks merit."[D]efendant opened the [*2]door to the redirect examination by onlypartially exploring on cross-examination the issue whether the witness and defendant had engaged incriminal activity together in the past, rendering further examination and clarification on that issueappropriate" (People v Blair, 94 AD3d1403, 1404 [2012], lv denied 19 NY3d 971 [2012]; see People v Massie, 2NY3d 179, 183-185 [2004]). Contrary to defendant's contention, we also conclude that the court didnot err in determining that the identification of defendant by two of the People's witnesses wasconfirmatory (see People v Rodriguez, 79 NY2d 445, 449-452 [1992]; People v Cancer, 16 AD3d 835,838-839 [2005], lv denied 5 NY3d 826 [2005]; People v Lainfiesta, 257 AD2d 412,415-416 [1999], lv denied 93 NY2d 926 [1999]).
We next address the contentions defendant raises with respect to appeal No. 2 that areunpreserved for our review. Defendant's contention that the court erred in allowing a witness to testifythat he had allegedly committed uncharged crimes outside the scope of the Molineux ruling isnot properly before us inasmuch as defendant did not object at the time of that testimony (see People v Manning, 67 AD3d 1378,1380 [2009], lv denied 14 NY3d 803 [2010]). We decline to exercise our power to review itas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Moreover, "[b]yfailing to object to the court's ultimate Sandoval ruling, defendant [also] failed to preserve forour review his further contention . . . that the ruling constitutes an abuse of discretion" (People v Tolliver, 93 AD3d 1150,1151 [2012], lv denied 19 NY3d 968 [2012]). In any event, we conclude that the court'sSandoval ruling did not constitute a " 'clear abuse of discretion' " warranting reversal(id. at 1151-1152). Where, as here, "the convictions that the People seek to use are for crimesof individual dishonesty, the convictions should usually be admitted on a trial for similar charges,notwithstanding the risk of possible prejudice, because the very issue on which the offer is made is thatof the veracity of the defendant as a witness in the case" (People v Williams, 98 AD3d 1234, 1235 [2012] [internal quotationmarks omitted]).
We next address defendant's contentions relating to appeal No. 3. Defendant's contention that thecourt erred in failing to correct an alleged inconsistency between the verdict sheet and the jury'sresponse to the poll concerning its verdict on the third count of the indictment is unpreserved for ourreview (see People v Mercado, 91 NY2d 960, 963 [1998]; People v Shaver, 86 AD3d 800,802-803 [2011], lv denied 18 NY3d 962 [2012], reconsideration denied 19 NY3d967 [2012]; People v Lynch, 81 AD3d1292, 1292-1293 [2011], lv denied 17 NY3d 807 [2011]). In any event, " '[b]ased onthe minutes and the jury verdict sheet,' " it is clear that the court clerk merely misspoke when sheindicated that the jury had acquitted defendant of criminal possession of a forged instrument in thesecond degree as charged in the third count of the indictment, and that the jury had actually founddefendant guilty of that count (Lynch, 81 AD3d at 1293). Further, we note that the parties donot dispute that the fourth count of the indictment, which charged defendant with petit larceny, was laterdismissed on the People's consent by an order of County Court (Vincent Dinolfo, J.), determiningdefendant's motion pursuant to CPL article 440. Consequently, defendant's contentions that the verdictconvicting him of that crime is against the weight of the evidence, and that the prosecutor failed tocorrect perjured testimony with respect to that count, are academic.
Defendant next contends that the verdict is against the weight of the evidence insofar as it convictedhim of criminal possession of a forged instrument in the second degree under count five of theindictment and petit larceny as a lesser included offense of grand larceny in the fourth degree undercount seven of the indictment. Viewing the evidence in light of the elements of those crimes as chargedto the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject that contention (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant's further contention that the court erroneously admitted evidenceof uncharged crimes not authorized by the Molineux ruling lacks merit (cf. People vVentimiglia, 52 NY2d 350, 361-362 [1981]).
We agree with defendant, however, that the court erred in failing to suppress the in-court [*3]identification of defendant by the witness who specifically linked him attrial to the charge set forth in count six of the indictment on the ground that it was based on an undulysuggestive photo array procedure. Contrary to the People's assertion, this contention is preserved forour review (see People v Feingold, 7NY3d 288, 290 [2006]). On the merits, the People did not meet their initial burden of establishing"the reasonableness of the police conduct and the lack of any undue suggestiveness" with respect to thefirst of two photo arrays in which the subject witness identified defendant inasmuch as there was notestimony with respect to that photo array (People v Chipp, 75 NY2d 327, 335 [1990],cert denied 498 US 833 [1990]; seePeople v Coleman, 73 AD3d 1200, 1203 [2010]). Contrary to the People's further assertion,the error in admitting that identification testimony is not harmless beyond a reasonable doubt (cf. People v Siler, 45 AD3d 1403,1403 [2007], lv denied 10 NY3d 771 [2008]; People v Davis, 15 AD3d 930, 931 [2005], lv denied 5 NY3d761 [2005]). We therefore grant that part of defendant's omnibus motion seeking to suppress theidentification testimony with respect to count six of the indictment.
We further conclude with respect to both appeals, however, that the court erred in allowingdefendant to proceed pro se. Here, prior to sentencing in appeal No. 2, the court granted defendant'srequest to proceed pro se after he made what were, in the court's view, baseless accusations against hisrespective attorneys. Defendant subsequently proceeded pro se at sentencing at the first trial, i.e., thetrial at issue in appeal No. 2, and he likewise proceeded pro se throughout the second trial, i.e., the trialat issue in appeal No. 3. We conclude that the court erred in allowing defendant to proceed pro seinasmuch as it did not "undertake a searching inquiry . . . to insur[e] that . . .defendant [was] aware of the dangers and disadvantages of proceeding without counsel" (People vCrampe, 17 NY3d 469, 481 [2011] [internal quotation marks omitted]; see People v Allen, 99 AD3d 1252,1253 [2012]). Moreover, defendant did not forfeit his right to counsel. " 'While egregious conduct bydefendants can lead to a deemed forfeiture of the fundamental right to counsel' . . . therewas no such conduct by defendant here to warrant 'an extreme, last-resort forfeiture analysis' " (People v Bullock, 75 AD3d 1148,1149-1150 [2010], quoting People v Smith, 92 NY2d 516, 521 [1998]). We further concludethat the tainted proceedings adversely impacted defendant, thereby warranting vacatur of the sentencein appeal No. 2 and reversal of the judgment in appeal No. 3 (see Allen, 99 AD3d at 1253; see generally People v Wardlaw, 6 NY3d556, 559 [2006]). We further note that the new trial granted with respect to appeal No. 3 shouldbe preceded by a hearing to determine whether the subject witness with respect to count six of theindictment has an independent basis for an in-court identification of defendant (see People v Delamota, 18 NY3d 107,119 [2011]; People v Wilson, 5 NY3d778, 780 [2005]).
Finally, we have reviewed defendant's remaining contentions and conclude that they are eitherwithout merit or are rendered academic as a result of our decision herein. Present—Scudder,P.J., Fahey, Carni, Lindley and Sconiers, JJ.