| The People v Negron |
| 2013 NY Slip Op 08272 [112 AD3d 741] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Julio Negron, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Lasak, J.), dated September 26, 2012, which denied, without a hearing,his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same courtrendered April 26, 2006, convicting him of attempted murder in the second degree,assault in the first degree, reckless endangerment in the first degree, criminal possessionof a weapon in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant was convicted, after a jury trial, of attempted murder in the seconddegree, assault in the first degree, reckless endangerment in the first degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in thethird degree. The conviction was affirmed on appeal (see People v Negron, 41 AD3d 865 [2007]). The caseinvolved an incident in which the defendant was identified as the person who shotMervin Fevrier in the thigh after a brief verbal altercation. Three eyewitnesses alsoidentified the defendant's car as belonging to the shooter, and testified, together withanother eyewitness, that the shooter entered the apartment building where the defendantresides.
At trial, one of the eyewitnesses who had been with Fevrier at the time of theshooting testified that the shooter had a beard and mustache, and another witness pickedout a filler who had a mustache from a lineup that included the defendant. The defendanttestified that he was clean shaven both before and during the time of the shooting. Theprosecutor introduced the defendant's driver license photo from 2004 showing him withfacial hair.
Before trial, the People disclosed that another man, Fernando Caban, who lived inthe same building as the defendant, had been arrested for possession of a cache ofweapons and other contraband. Defense counsel moved to introduce evidence that Cabanwas the shooter on the basis that Caban looked like the defendant, lived in the sameapartment building as the defendant, and had been arrested after the shooting forpossession of a cache of weapons and other contraband. The trial [*2]court denied the defendant's motion.
The defendant appeals from an order denying his motion to vacate the judgment ofconviction pursuant to CPL 440.10. The defendant contends that the judgment ofconviction should be vacated on the grounds that he received ineffective assistance ofcounsel at trial, that the People committed Brady violations (see Brady vMaryland, 373 US 83 [1963]), and that he is actually innocent of the crimes of whichhe was convicted.
The defendant contends that he received ineffective assistance of counsel at his trialunder both the United States Constitution and the New York Constitution. Under theNew York State standard for ineffectiveness of counsel, "[s]o long as the evidence, thelaw, and the circumstances of a particular case, viewed in totality and as of the time ofthe representation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Baldi, 54 NY2d 137,147 [1981]; see People v Henry, 95 NY2d 563, 565 [2000]). Whether trialcounsel should be considered ineffective depends upon the fairness of the process as awhole (see People v Benevento, 91 NY2d 708, 714 [1998]). In New York, adefendant need not prove that the outcome of the case would have been different but forcounsel's errors, rather, only that he was deprived of a fair trial overall (see People v Caban, 5 NY3d143, 155-156 [2005]).
In addition to demonstrating that counsel's performance fell below an objectivestandard of reasonableness, a claim of ineffective assistance of counsel under the SixthAmendment to the United States Constitution requires the defendant to establish that hewas prejudiced by such deficient performance (see Strickland v Washington, 466US 668, 687 [1984]). Prejudice is established when "there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent" (id. at 694).
The defendant failed to establish that he received ineffective assistance of counselunder either federal or state constitutional standards. The defendant contends that his trialcounsel was ineffective, among other things, for failing to object to the trial court's denialof his motion to admit evidence supporting a third-party culpability defense. Indetermining whether to admit such evidence, the court must weigh the probative natureof the evidence against the potential for delay, prejudice, or confusion (see People vPrimo, 96 NY2d 351 [2001]). Here, the evidence was of slight, remote, orconjectural significance, and was not sufficiently probative to outweigh thecountervailing risks of trial delay, undue prejudice, confusing the issues, or misleadingthe jury (see id. at 355). Thus, the Supreme Court properly denied the defendant'smotion to admit evidence supporting third-party culpability, and defense counsel cannotbe considered to have rendered ineffective assistance of counsel by failing to object tothe denial of that motion.
The defendant's further contentions that defense counsel was ineffective for failing tointroduce the defendant's mugshot or lineup photo during trial, failing to investigate andpresent 11 additional witnesses who would have testified that the defendant did not havefacial hair at the time of the shooting, failing to question the two defense witnesses as towhether the defendant had facial hair at the time of the shooting, and failing to point outthat an eyewitness picked out a filler from the lineup who had a mustache, therebysupporting another eyewitness's description of the perpetrator as having facial hair, arealso without merit. The defendant failed to establish that there is a reasonable probabilitythat the introduction of this evidence would have affected the outcome of the trial(see Padilla v Kentucky, 559 US 356 [2010], citing Strickland vWashington, 466 US 668 [1984]). Furthermore, the record establishes that defensecounsel provided meaningful representation as a whole (see generally People vBerroa, 99 NY2d 134, 138 [2002]; People v Benevento, 91 NY2d at 712;People v Satterfield, 66 NY2d 796, 799 [1985]).
The defendant contends that the People committed Brady violations by: (1)failing to disclose that Caban's cache of weapons included .45-caliber ammunition, thesame caliber of ammunition used in the shooting; (2) failing to disclose, inter alia, thatCaban fled with his cache of weapons when the police arrived to search the defendant'sapartment, and escaped after discarding bags of weaponry and other contraband on theroof of his apartment building; and (3) failing to disclose the existence or identities ofpolice and civilian witnesses who could have testified as to [*3]Caban's "guilty behavior."
As an initial matter, the Supreme Court noted that the Rosario materials(see People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866[1961]) turned over by the People indicated that Caban's cache of weapons included,inter alia, .45-caliber ammunition. In any event, the defendant's contention that thePeople committed Brady violations is without merit. "To establish aBrady violation, '[t]he evidence at issue must be favorable to the accused, eitherbecause it is exculpatory, or because it is impeaching; that evidence must have beensuppressed by the State, either willfully or inadvertently; and prejudice must have ensued'" (People v Alonso, 91AD3d 663, 664 [2012], quoting Strickler v Greene, 527 US 263, 281-282[1999]). Here, the undisclosed material was not exculpatory, since there was no ballisticsevidence conclusively linking the shell casings recovered from the crime scene to the.45-caliber ammunition found in Caban's cache, or to any weapons found in the cache.Caban's flight and attempt to discard weapons and other contraband on the roof of hisbuilding upon the arrival of the police showed only consciousness of guilt as to thepossession of illegal guns and other contraband (see generally People v Pacheco, 38 AD3d 686 [2007]; People v Pannell, 3 AD3d541 [2004]). Moreover, there was no showing of prejudice, because there is noreasonable probability that the failure to disclose the materials contributed to the verdict(see People v Alonso, 91 AD3d at 664). Accordingly, the Supreme Courtproperly determined that the People did not commit any Brady violations.
The defendant's remaining contention is without merit. Dillon, J.P., Angiolillo,Roman and Sgroi, JJ., concur.