| People v Mattis |
| 2013 NY Slip Op 05245 [108 AD3d 872] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTrevor Mattis, Also Known as Little T, Appellant. |
—[*1] Marlene O. Tuczinski, New York Prosecutors Training Institute, Albany, forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Ulster County(Williams, J.), entered May 6, 2011, upon a verdict convicting defendant of the crimes ofmurder in the first degree, conspiracy in the second degree, intimidating a victim orwitness in the first degree, tampering with a witness in the first degree and criminalpossession of a weapon in the second degree (two counts), and (2) from a judgment ofsaid court, rendered August 26, 2011, which resentenced defendant.
In February 2010, defendant allegedly shot and killed the victim, who wascooperating with police and going to testify against defendant's brother, a gang member,in a pending criminal case. Defendant's brother, codefendant Jarrin Rankin, had beenarrested and charged in connection with a fatal shooting that had occurred a few monthsearlier in November 2009. Phone calls that Rankin made from jail were recorded,revealing that he and gang members were attempting to identify and locate whoever wascooperating with police. They suspected the victim and, in January 2010, codefendantRondy Russ, a gang member, threatened the victim's father and warned about the victimtestifying against Rankin. In early February 2010, the victim was listed as a potentialwitness for Rankin's upcoming trial. On February 9, 2010, defendant, [*2]who had been released from prison in mid-January 2010,received a call from codefendant Jermaine Nicholas, a gang member, ostensiblyindicating that the victim, who had been out of the area, was at a deli in the City ofKingston, Ulster County. Defendant, together with codefendants Gary Griffin (a gangmember who gave defendant a handgun), Damitria Kelley (Rankin's girlfriend) andAmanda Miller (the driver) went to the deli to meet Nicholas.
At the deli, defendant engaged in a conversation with the victim, and the two wererecorded by a store surveillance camera walking up a street. The camera recordedNicholas and Griffin returning to the car where Kelley and Miller were waiting. Shortlythereafter, and out of the camera's range, the victim was shot twice, including a fatal shotto the back of his head. Defendant returned to the car, which then fled.
Using the recorded images, police quickly located the various individuals, and Kelleyand Miller eventually agreed to cooperate. Defendant initially denied being in Kingstonwhen the crime occurred, but, upon being informed of the surveillance camera videotape,he gave a Mirandized recorded statement acknowledging shooting the victim. Amulticount indictment alleged various crimes related to the victim's death committed bydefendant, Griffin, Nicholas, Rankin, Russ, Miller and Kelley. Defendant's motion tosuppress his recorded statement was denied after a Huntley hearing at which heclaimed that an officer had coerced his statement by choking and threatening him.Defendant and Griffin were tried together, and Kelley and Miller testified on behalf ofthe People at the trial. Defendant also testified at trial, claiming that he did not shoot thevictim and his statement had been coerced. A jury found him (and Griffin) guilty ofmurder in the first degree, conspiracy in the second degree, intimidating a victim orwitness in the first degree, tampering with a witness in the first degree and criminalpossession of a weapon in the second degree (two counts). County Court sentenceddefendant to a prison term of life without parole on the first degree murder count andother, shorter, concurrent indeterminate prison terms for the remaining counts.Subsequently, he was resentenced on certain counts as a second felony offender.Defendant appeals.
County Court did not err in denying defendant's motion to suppress his statements topolice. "The People bore the burden of proving the voluntariness of defendant'sstatements beyond a reasonable doubt, including that any custodial interrogation waspreceded by the administration and defendant's knowing waiver of his Mirandarights" (People v Culver, 69AD3d 976, 976 [2010] [citation omitted]). "Determining whether a statement isvoluntary is a factual issue governed by the totality of the circumstances [and] [t]hecredibility assessments of the suppression court in making that determination are entitledto deference" (People vDavis, 18 AD3d 1016, 1017 [2005], lv denied 5 NY3d 805 [2005][citations omitted]; see People v Anderson, 42 NY2d 35, 38-39 [1977]).
Proof presented by the People at the Huntley hearing included, among others,the testimony of the officer who took defendant into custody and questioned him. Theofficer testified that he read defendant his Miranda rights before any questioningregarding the incident, defendant acknowledged that he understood his rights and agreedto answer questions without an attorney present. The officer further testified that he againadministered Miranda rights before starting defendant's recorded statement, and athird reading of the Miranda rights occurred at the beginning of the recordedstatement. Defendant claimed that he received the Miranda warnings only onceand that, prior to his recorded statement, the officer was choking him, resulting indefendant agreeing to give the statement so the officer would stop choking him.Credibility determinations were key and County Court found the People's witnessescredible. We discern no [*3]reason to reject thosedeterminations, which are supported by the record, as is County Court's finding thatdefendant's statement was voluntarily given.
Defendant contends that County Court's Sandoval decision deprived him of afair trial. The Sandoval determination "rests largely within the reviewablediscretion of the trial court, to be exercised in light of the facts and circumstances of theparticular case before it" (People v Hayes, 97 NY2d 203, 207 [2002]; see People v Smith, 18 NY3d588, 592 [2012]). Defendant planned to testify and sought to exclude or limit thePeople's use of his 2005 conviction for robbery and assault, crimes which arose whendefendant punched a woman in the face breaking her nose and loosening two teeth as hestole $40 from her. After weighing the probative value against the potential for prejudice,County Court permitted the People to use the underlying facts of the conviction oncross-examination of defendant and gave appropriate limiting instructions to the jurywith regard thereto. Although we are unpersuaded that this constituted an abuse ofdiscretion (see People vBeverly, 6 AD3d 874, 876 [2004], lv denied 3 NY3d 637 [2004]; see also People v Mitchell, 57AD3d 1308, 1312 [2008]; People v Foster, 52 AD3d 957, 960-961 [2008], lvdenied 11 NY3d 788 [2008]), even if we were to find error in the Sandovalruling, such error would be harmless in light of the overwhelming evidence ofdefendant's guilt (see People vDavis, 72 AD3d 1274, 1275 [2010]; People v Boodrow, 42 AD3d 582, 585 [2007]).
Kelley and Miller related at trial their apprehension in testifying and the prosecutorcommented upon their fears in summation. Defendant's contention that this constitutederror was not properly preserved (see People v Gray, 86 NY2d 10, 19 [1995]; People v Houck, 101 AD3d1239, 1240 [2012]) and, in any event, it was not reversible error given the contextand circumstances under which the comments were made (see People v Smith, 12 AD3d946, 948 [2004], lv denied 4 NY3d 768 [2005]). Nor did the failure toobject to those comments result in defendant not receiving the effective assistance ofcounsel. Review of the entire record reveals that defendant clearly received meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]), and thefailure to object to these particular statements was not so "egregious and prejudicial as tocompromise . . . defendant's right to a fair trial" (People v Caban, 5 NY3d143, 152 [2005]; seePeople v Vasquez, 20 NY3d 461, 466 [2013]; People v Baker, 14 NY3d266, 270-271 [2010]).
An adequate foundation was established for admitting an Ulster County Sheriff'sOffice incident report from July 2005 (see CPL 60.10; CPLR 4518 [a]; seegenerally People v Kennedy, 68 NY2d 569, 579-580 [1986]). The People providedfoundation testimony through a deputy sheriff who had worked at the Sheriff's Office for34 years and in the records division for over four years. Although the deputy sheriff didnot work in the records division at the time that the record was created, he indicatedsufficient knowledge of the record-keeping practices and procedures of the Sheriff'sOffice, and it was not necessary that he have personal knowledge regarding thisparticular record (see generally People v Cratsley, 86 NY2d 81, 89-90 [1995];Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed]; 16-19 Bender'sNew York Evidence § 19.04 [1]).
We are unpersuaded by defendant's argument that County Court erred in denying,without a hearing, his motion to set aside the verdict because of purported improper juryconduct (see CPL 330.30 [2]). The asserted misconduct was that the juryimproperly speculated about the reason for defense counsel's objections to the use of theword "execution." The portion of defendant's motion addressed to this issue wassupported only by an attorney's affirmation and a newspaper article. Moreover, as CountyCourt noted in addressing the motion, the word[*4]"execution" was used on some occasions at trial withoutobjection. In light of the lack of competent proof presented on the issue and thespeculative nature of defendant's argument, County Court acted within its discretion indenying the motion without a hearing (see People v Samandarov, 13 NY3d 433, 436 [2009]; People v Gerrara, 88 AD3d811, 813-814 [2011], lv denied 18 NY3d 957 [2012], cert denied568 US —, 133 S Ct 857 [2013]; People v Young, 74 AD3d 1471, 1473-1474 [2010], lvdenied 15 NY3d 811 [2010]).
Defendant asserts that his sentence is harsh and excessive. We cannot agree.Considering the brutal nature of the crime, together with defendant's criminal record andapparent lack of remorse, we find neither an abuse of discretion nor extraordinarycircumstances warranting a reduction of the sentence (see People v Callicut, 101AD3d 1256, 1264-1265 [2012], lv denied 20 NY3d 1096 [2013]; People v Burnell, 89 AD3d1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Muller, 72 AD3d1329, 1336 [2010], lv denied 15 NY3d 776 [2010]).
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgments areaffirmed.