| People v Baxter |
| 2013 NY Slip Op 05379 [108 AD3d 1158] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vNathan Baxter, 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 July 29, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and resisting arrest (§ 205.30). Defendant failed to preserve for ourreview his contention that County Court "did not follow the requisite three-step analysiswhen he raised a Batson challenge" (People v Collins, 63 AD3d 1609, 1610 [2009], lvdenied 13 NY3d 795 [2009]; see People v Robinson, 1 AD3d 985, 985-986 [2003],lv denied 1 NY3d 633 [2004], lv denied upon reconsideration 2 NY3d805 [2004]).
In any event, that contention is without merit, as is defendant's further contention thatthe court erred in denying his Batson challenge. The law is well settled that,"[u]nder Batson and its progeny, the party claiming discriminatory use ofperemptories must first make out a prima facie case of purposeful discrimination byshowing that the facts and circumstances of the voir dire raise an inference that the otherparty excused one or more jurors for an impermissible reason . . . Once aprima facie showing of discrimination is made, the nonmovant must come forward with arace-neutral explanation for each challenged peremptory—step two. . . The third step of the Batson inquiry requires the trial court tomake an ultimate determination on the issue of discriminatory intent based on all of thefacts and circumstances presented" (People v Smocum, 99 NY2d 418, 421-422[2003]; see People v James, 99 NY2d 264, 270-271 [2002]). Defendant'scontention regarding the first prong of the test is not at issue because where, as here, theprosecution "has placed its race-neutral reasons [for exercising a challenge] on the record. . . , the sufficiency of the prima facie showing becomes 'moot' " (People v Hecker, 15 NY3d625, 652 [2010]; see People v Payne, 88 NY2d 172, 182 [1996]).Furthermore, we conclude that the prosecutor "met [her] burden under step two of theanalysis and that the court properly 'denied [defendant's Batson] challenge,thereby implicitly determining that [the prosecutor's] reasons [for exercising theperemptory challenge] were not pretextual' under step three" (People v Scott, 31 AD3d1165, [*2]1165 [2006], lv denied 7 NY3d851 [2006]; see Robinson, 1 AD3d at 986).
Defendant failed to preserve for our review his further contention that the court erredin questioning him during the trial and thereby deprived him of a fair trial (see Peoplev Charleston, 56 NY2d 886, 887 [1982]; People v Valle, 70 AD3d 1386, 1387 [2010], lvdenied 15 NY3d 758 [2010]; People v Smalls, 293 AD2d 500, 500-501[2002], lv denied 98 NY2d 681 [2002]). In any event, we reject that contention."Although some of the court's comments and interventions were inappropriate, they werenot so egregious as to deprive defendant of a fair trial" (People v Rios-Davilla, 64AD3d 482, 483 [2009], lv denied 13 NY3d 838 [2009]; cf. People vArnold, 98 NY2d 63, 67-69 [2002]), particularly in view of the fact that theyconcerned only a tangential issue regarding the precise location of a potential witness atthe time of the crime.
Defendant failed to preserve for our review his contention that the testimony of adetective at the suppression hearing "was patently tailored to nullify constitutionalobjections and was incredible as a matter of law" (People v Watson, 90 AD3d 1666, 1667 [2011], lvdenied 19 NY3d 868 [2012]; see People v Inge, 90 AD3d 675, 676 [2011], lvdenied 18 NY3d 958 [2012]; People v Barnwell, 40 AD3d 774, 775 [2007], lvdenied 9 NY3d 920 [2007]). In any event, that contention is without merit inasmuchas the detective's testimony that he could observe a weapon in defendant's lap through apartly open window in broad daylight is not patently unbelievable. Defendant's remainingcontentions with respect to the detective are outside the record on appeal and thus areproperly the subject of a motion pursuant to CPL article 440 (see generally People vStachnik, 101 AD3d 1590, 1591 [2012], lv denied 20 NY3d 1104[2013]).
Defendant's contention that he was denied his constitutional right to present adefense is not preserved for our review (see People v Lane, 7 NY3d 888, 889 [2006]; People vLee, 96 NY2d 157, 163 [2001]). We nevertheless review defendant's relatedevidentiary challenge to the court's denial of his request for an order to produce aproposed inmate witness at trial inasmuch as that contention is properly before us, andwe conclude that such contention requires reversal. CPL 630.10 provides for theattendance of an inmate witness in a criminal action or proceeding upon a demonstrationof "reasonable cause to believe that such person possesses information material" to suchproceeding. Here, defendant made the requisite showing under that statute, and the courtabused its discretion in refusing to order the production of the subject inmate witnesswhose testimony defendant sought to present at trial (see People v Prentice, 208AD2d 1064, 1064-1065 [1994], lv dismissed 84 NY2d 1037 [1995]; seegenerally People v Aska, 91 NY2d 979, 980-981 [1998]). There is no dispute thatthe proposed inmate witness spoke to the driver of the vehicle in which defendant was apassenger just before defendant's arrest. The proposed witness was at a distance ofbetween 20 feet and 20 yards from the vehicle at the time of defendant's arrest.Moreover, we note that there was no fingerprint evidence in this case, which involved atop count of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]), and the issue of defendant's guilt turned largely on the testimony of twopolice detectives. We cannot countenance the court's refusal to allow defendant topresent the testimony of a witness who might have supported defendant's version ofevents.
Moreover, in refusing to order the production of the proposed inmate witness, thecourt relied largely on the contents of a letter defendant had written to the proposedinmate witness regarding that witness's anticipated testimony at trial. It is undisputed,however, that the proposed inmate witness never received the letter and knew nothing ofthat correspondence, and the court's focus on such letter in denying defendant's request toproduce that witness reflects a misunderstanding of defendant's request. Indeed, we notethat, on the record before us and in the absence of a jury evaluation of the testimony ofthe proposed inmate witness (see generally People v Witherspoon, 66 AD3d 1456, 1457[2009], lv denied 13 NY3d 942 [2010]), we are unable to ascertain whether theletter was an attempt to suborn perjury or was instead an inartful but truthful [*3]reflection of defendant's own version of events and anindication to the proposed inmate witness of what that version was. We therefore reversethe judgment and grant defendant a new trial. In view of our determination, we do notaddress defendant's remaining contentions.
All concur except Smith, J.P., and Valentino, J., who dissent and vote to affirm in thefollowing memorandum.
Smith, J.P., and Valentino, J. (dissenting). We respectfully disagree with the majoritythat County Court erred in denying defendant's request for an order to produce anincarcerated witness at trial, and we therefore dissent. Initially, we agree with themajority that defendant failed to preserve for our review his constitutional challenge tothe denial of his request (seePeople v Lane, 7 NY3d 888, 889 [2006]; People v Little, 24 AD3d 1244, 1245 [2005], lvdenied 6 NY3d 835 [2006]). We further agree that defendant requested an orderdirecting the production of the incarcerated witness and thus preserved for our review hiscontention that the court erred in denying that request. We conclude, however, thatdefendant failed to meet his burden with respect to his request, and thus the courtproperly denied it.
A trial court may issue an order directing the production of "a person confined in aninstitution within this state . . . , upon application of a party to a criminalaction or proceeding, demonstrating reasonable cause to believe that such personpossesses information material thereto" (CPL 630.10). In his request for such an order,therefore, defendant was required to provide the court "with some assurance that thewitness will be able to give competent material evidence on a matter at issue in theproceeding" (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book11A, CPL 630.10 at 29). Under similar circumstances, when seeking an adjournment tocall a witness, a defendant must make an offer of proof establishing that the testimony ofthe witness "would be material and favorable to the defense" (Matter of AnthonyM., 63 NY2d 270, 284 [1984]; see People v Softic, 17 AD3d 1075, 1076 [2005], lvdenied 5 NY3d 794 [2005]; People v Doud, 280 AD2d 955, 955-956 [2001],lv denied 96 NY2d 799 [2001]). We conclude that defendant must make asimilar showing in the situation before us.
Here, defendant did not make an offer ofproof regarding the substance of the proposed testimony of the incarcerated witness. Tothe contrary, defendant merely intimated that the witness might provide charactertestimony and might also have unspecified information regarding the facts, withoutstating the nature or source of that information. Furthermore, during the oral request forthe order at issue, defense counsel indicated that he had never spoken with the witness orhad any indirect communication regarding the substance of his possible testimony.Although we agree with the majority that other evidence at trial established that thiswitness was present at the scene, that fact alone did not establish that he had materialinformation to provide with respect to the charges. Indeed, defendant testified that thewitness was some distance from the vehicle when the officers approached it, which iswhen the officers testified that they observed the weapon in defendant's lap.Consequently, the court properly denied defendant's request because "the defense. . . failed to show that [the] witness[ ] possessed material information"regarding the issues at trial (People v Thomas, 148 AD2d 883, 885 [1989], lvdenied 74 NY2d 748 [1989]; see People v Wright, 176 AD2d 1131, 1131[1991], lv denied 79 NY2d 866 [1992]).
Because we agree with the majority regarding defendant's remaining contentions, wewould affirm the conviction. Present—Smith, J.P., Fahey, Carni, Valentino andWhalen, JJ.