| People v Williams |
| 2013 NY Slip Op 04136 [107 AD3d 1391] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Paul Williams, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered June 30, 2009. The judgment convicted defendant, upon a jury verdict, ofsexual abuse in the first degree, rape in the third degree and criminal impersonation in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating that part convicting defendant of criminal impersonation in the firstdegree and dismissing count five of the superseding indictment, and by vacating thesentence imposed for rape in the third degree, and the matter is remitted to OnondagaCounty Court for resentencing on that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of sexual abuse in the first degree (Penal Law § 130.65 [1]), rape in thethird degree (§ 130.25 [3]), and criminal impersonation in the first degree (§190.26 [1], [2]). We reject defendant's contention that the conviction of sexual abusemust be reversed because County Court's jury instructions created a possibility that thejury convicted him upon a theory different from that set forth in the supersedingindictment (hereinafter, indictment). Although defendant failed to object to the court'sinstructions and thus failed to preserve that contention for our review, we havepreviously "conclude[d] that preservation is not required" with respect to this issue (People v Greaves, 1 AD3d979, 980 [2003]), because "[t]he right of an accused to be tried and convicted ofonly those crimes and upon only those theories charged in the indictment is fundamentaland nonwaivable" (People v Rubin, 101 AD2d 71, 77 [1984], lv denied63 NY2d 711 [1984]). Here, the indictment, as amplified by the bill of particulars,charged defendant with committing the crime of sexual abuse in the first degree byphysical force (see generally § 130.00 [8] [a]), whereas the court'sinstructions permitted the jury to convict defendant upon a finding that he committed thecrime by means of an expressed or implied threat (see generally § 130.00[8] [b]). Notwithstanding that error, we conclude that reversal is not required under thecircumstances of this case. "Had there been evidence from which the . . .jury could have concluded that defendant accomplished his crimes through the use ofexpress or implied threats that overcame the complainant's will, then the court'sinstructions—which permitted the jury to consider that unchargedtheory—might well have violated defendant's right to be tried only for crimes withwhich the [g]rand [j]ury had charged him. [Here, to the contrary], there was no suchevidence" (People v Grega, 72 NY2d [*2]489,496 [1988]).
We agree with defendant, however, that the court's jury instructions with respect tothe crime of criminal impersonation in the first degree permitted the jury to convict himupon a theory not charged in the indictment, and thus violated his right to be tried foronly those crimes charged in the indictment, as limited by the bill of particulars (seegenerally Matter of Corbin v Hillery, 74 NY2d 279, 290 [1989], affd sub nom.Grady v Corbin, 495 US 508 [1990], overruled on other grounds United States vDixon, 509 US 688 [1993]). Again, we address defendant's contention despite hisfailure to preserve it for our review (see Rubin, 101 AD2d at 77). The fifth countof the indictment alleged that defendant committed the crime of criminal impersonationwhen he pretended to be a police officer and, "in the course of such pretense, committedor attempted to commit the felony of [r]ape in the first degree." The court's instructions,however, permitted the jury to convict defendant upon finding that he committed anyfelony in the course of pretending to be a police officer, thus allowing the jury to convictdefendant upon a theory not charged in the indictment. We therefore modify thejudgment accordingly.
Contrary to defendant's contention, we conclude with respect to the remaining countsthat the conviction is supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]) and, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not contrary to the weight of the evidence with respect tothose counts (see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that the court erred in denying his request toexercise a peremptory challenge against a prospective juror after both parties hadaccepted that prospective juror and exhausted their challenges to the alternate juror, andafter the court declared jury selection to be complete. "There is nothing in CPL 270.15that would require a court to grant a defendant's request to exercise a peremptorychallenge to a juror who had already been accepted by both sides earlier in jury selection,but who had not yet been sworn" (People v Smith, 278 AD2d 75, 76 [2000],lv denied 96 NY2d 763 [2001]; see People v Brown, 52 AD3d 248, 248 [2008], lvdenied 11 NY3d 735 [2008]; People v Smith, 11 AD3d 202, 203 [2004], lvdenied 4 NY3d 748 [2004]).
Defendant further contends that he is entitled to a new trial because of prosecutorialmisconduct and because the court erred in several of its evidentiary rulings. Defendantalleges, inter alia, that the prosecutor engaged in misconduct by eliciting testimonyregarding defendant's postarrest silence during the People's direct case, and he furtheralleges that the court erred by permitting the prosecutor to comment on that testimonyduring her opening and closing statements. We reject those contentions. As a preliminarymatter, we reject the People's contention that defendant failed to preserve his contentionfor our review. Defense counsel objected, albeit belatedly, to the prosecutor's commentson defendant's postarrest silence during her opening statement, and promptly objectedseveral times to questions that elicited testimony concerning defendant's postarrestsilence. Although defendant failed to preserve that part of his contention concerning theprosecutor's closing statement, under the circumstances of this case we exercise ourpower to review that part of defendant's contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]), particularly because the issue wasraised earlier and thus was before the court in any event.
Next, we agree with defendant that those comments by the prosecutor duringopening and closing statements were improper and that the court erred in admittingtestimony that he refused to answer certain questions and remained silent with respect toothers. "Neither a defendant's silence [nor his] invocation of the right againstself-incrimination during police interrogation can be used against him on the People'sdirect case" (People vWhitley, 78 AD3d 1084, 1085 [2010]; see [*3]People v Capers, 94AD3d 1475, 1476 [2012], lv denied 19 NY3d 971 [2012]). We neverthelessconclude, "in light of the evidence presented, . . . that any such errors were'harmless beyond a reasonable doubt' inasmuch as there is 'no reasonable possibility thatthe error[s] might have contributed to defendant's conviction' " (People v Murphy, 79 AD3d1451, 1453 [2010], lv denied 16 NY3d 862 [2011], quoting People vCrimmins, 36 NY2d 230, 237 [1975]; see Capers, 94 AD3d at 1476).
With respect to defendant's contention that he was denied effective assistance ofcounsel, we conclude that "the evidence, the law, and the circumstances of [this]particular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]). Defense counsel, inter alia, appropriately cross-examined the witnesses, gavecogent opening and closing statements, and presented a viable defense theory thatresulted in defendant's acquittal of the two most serious charges in the indictment.Furthermore, defendant has failed "to demonstrate the absence of strategic or otherlegitimate explanations" for his various allegations of ineffectiveness (People vRivera, 71 NY2d 705, 709 [1988]).
Contrary to defendant's further contention, the court did not abuse its discretion indenying his request for a new attorney or to proceed pro se. "In determining whethergood cause [for substitution of counsel] exists, a trial court must consider the timing ofthe defendant's request, its effect on the progress of the case and whether present counselwill likely provide the defendant with meaningful assistance. Good cause determinationsare necessarily case-specific and therefore fall within the discretion of the trial court" (People v Linares, 2 NY3d507, 510 [2004]). Furthermore, "good cause does not exist [where, as here,]defendants are guilty of delaying tactics or where, on the eve of trial, disagreements overtrial strategy generate discord" (id. at 511).
With respect to defendant's contention that the court erred in denying his request torepresent himself, the record establishes that his "request to represent himself was notclear and unequivocal. Rather, the record shows that his request was made in connectionwith applications for substitution of assigned counsel, and in the alternative to thoseapplications. Under those circumstances, the [court] did not improvidently exercise itsdiscretion in denying the . . . request" (People v Littlejohn, 92 AD3d 898, 898 [2012], lvdenied 19 NY3d 963 [2012]; see generally People v Payton, 45 NY2d 300,314 [1978], revd on other grounds 445 US 573 [1980]).
We reject defendant's contention that the sentences imposed on the convictions ofsexual abuse in the first degree and rape in the third degree must run concurrently,inasmuch "as each count involved a separate sexual act constituting a distinct offense"(People v Colon, 61 AD3d772, 773 [2009], lv denied 13 NY3d 743 [2009]; see People v Stiles, 78 AD3d1570, 1570 [2010], lv denied 16 NY3d 863 [2011]). The People correctlyconcede, however, that the indeterminate term of imprisonment imposed upon theconviction of rape in the third degree is illegal. That crime carries a mandatorydeterminate sentence with a period of postrelease supervision (see Penal Law§ 70.80 [5] [b] [iv]; see also § 70.45 [2-a] [g]). "Although this issuewas not raised before the [sentencing] court . . . , we cannot allow an[illegal] sentence to stand" (People v Price, 140 AD2d 927, 928 [1988]; see People v Thigpen, 30AD3d 1047, 1049 [2006], lv denied 7 NY3d 818 [2006]). We thereforefurther modify the judgment by vacating the sentence imposed on that count, and weremit the matter to County Court for resentencing on that count. The remainder of thesentence is not unduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.