| People v McArthur |
| 2014 NY Slip Op 00016 [113 AD3d 1088] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Levaughn McArthur, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered October 12, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (two counts), assault in the first degree and criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of two counts of burglary in the first degree (Penal Law § 140.30 [2], [3])and one count each of assault in the first degree (§ 120.10 [4]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]). Defendant contends thathe was denied his right to be present at all material stages of the trial inasmuch as he wasnot present for a bench conference that occurred during his testimony (see People vAntommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759[1992]). Even assuming, arguendo, that the bench conference " 'involved factual mattersabout which defendant might have [had] peculiar knowledge that would [have] be[en]useful in advancing [his] or countering the People's position' " (People vSpotford, 85 NY2d 593, 596 [1995], quoting People v Dokes, 79 NY2d 656,660 [1992]; cf. People v Horne, 97 NY2d 404, 416 [2002]), we conclude thatdefendant voluntarily, knowingly and intelligently waived that right (see People vVargas, 88 NY2d 363, 375-376 [1996]; see also People v Velasquez, 1 NY3d 44, 49 [2003]).Defendant's contention that County Court erred in modifying its Sandoval rulingduring trial is not properly before us (see CPL 470.05 [2]), and we decline toexercise our power to address it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant further contends that the court erred in determining that his request for amissing witness charge was untimely because it was made after both parties had rested,"rather than at the close of the People's proof, when defendant became 'aware that thewitness[es] would not testify' " (People v Williams, 94 AD3d 1555, 1556 [2012]; see People v Lopez, 96 AD3d1621, 1622 [2012], lv denied 19 NY3d 998 [2012]). Defendant's contentionthat the court failed to respond meaningfully to a jury note seeking clarification of thedefinition of intent is not preserved for our review (see People v Santiago, 101 AD3d 1715, 1717 [2012],lv denied 21 NY3d 946 [2013]) and, in any event, it lacks merit because "thecourt's rereading of the [intent] instruction constituted a [*2]meaningful response" to the note (id.).
We further conclude that defendant's challenge to the legal sufficiency of theevidence supporting the conviction of burglary and assault is not preserved for ourreview (see People v Gray, 86 NY2d 10, 19 [1995]), and in any event lacks merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Even assuming,arguendo, that defendant's challenge to the legal sufficiency of the evidence supportingthe conviction of criminal possession of a weapon in the third degree is preserved for ourreview (cf. Gray, 86 NY2d at 19), we conclude that defendant's challenge lacksmerit (see Bleakley, 69 NY2d at 495). Viewing the evidence in light of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we alsoconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). "[R]esolution of issues of credibility, as well as theweight to be accorded to the evidence presented, are primarily questions to be determinedby the jury" (People vWitherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]), and we see no basis for disturbing the jury'sresolution of those issues.
Viewing the evidence, the law and the circumstances of this case, in totality and as ofthe time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant further contends that his right to present a defense was violated when thecourt precluded him from presenting hearsay evidence in which defendant's accompliceattempted to exonerate defendant. We reject that contention. "[A] defendant has aconstitutional right to present a defense" (People v Hayes, 17 NY3d 46, 53 [2011]), and a"defendant's constitutional right to due process requires admission of hearsay evidencewhen [the] declarant has become unavailable to testify and 'the hearsay testimony ismaterial, exculpatory and has sufficient indicia of reliability' " (People v Burns, 6 NY3d793, 795 [2006], quoting People v Robinson, 89 NY2d 648, 650 [1997][emphasis omitted]). Here, there is no dispute that the accomplice was unavailable totestify (see People v Stultz,2 NY3d 277, 286 [2004], rearg denied 3 NY3d 702 [2004]), and we agreewith the parties that our analysis turns on the issue whether the accomplice's statementswere declarations against penal interest, and thus admissible as an exception to thehearsay rule (see People vShabazz, 22 NY3d 896, 898 [2013]). The hearsay evidence at issue consists ofstatements made by the accomplice during his plea colloquy and in a letter in which hetook "full responsibility for what occurred." We agree with the People that the courtproperly concluded that those statements were unreliable, and thus did not err in refusingto admit them in evidence (cf. id.; People v McFarland, 108 AD3d 1121, 1122-1123 [2013]).The court expressly noted that, during the plea colloquy, the accomplice sought to alterhis account of the incident out of a desire to avoid entering the prison system as a"snitch," and the court outlined the accomplice's contradictory statements during the pleacolloquy. The accomplice initially stated that defendant entered the home in which theassault occurred only to "get" the accomplice, thus implying that defendant had enteredthe home after the accomplice was there. The court then advised the accomplice thatuntruthful testimony during the plea colloquy could result in the accomplice receiving asentence greater than that promised to him during plea negotiations, and noted that thePeople had witnesses "who were there" at the subject home and "saw what happened."When the plea colloquy resumed, the accomplice changed his account, stating thatdefendant had entered the home with the accomplice. That change leads us to concludethat the court properly found the accomplice's testimony at the plea colloquy to beunreliable. Even assuming, arguendo, that the letter is contrary to the accomplice's penalinterest, we further conclude that the court properly found that the statements thereinwere also unreliable. We note that the letter was signed one week after the accomplice'splea colloquy, and that the accomplice attempted to establish therein that defendant hadno knowledge of the accomplice's plans when the accomplice took him to the home. Wefurther note that the Court of Appeals has recently reiterated that there are fourcomponents to the declaration against penal interest exception to the hearsay rule: "(1)the declarant must be unavailable to testify by reason [*3]of death, absence from the jurisdiction or refusal to testifyon constitutional grounds; (2) the declarant must be aware at the time the statement ismade that it is contrary to penal interest; (3) the declarant must have competentknowledge of the underlying facts; and (4) there must be sufficient proof independent ofthe utterance to assure its reliability" (Shabazz, 22 NY3d at 898). Jerome Prince,Richardson on Evidence sets forth a fifth component, i.e., that the declarant "had noprobable motive to misrepresent the facts" (Jerome Prince, Richardson on Evidence§ 8-403 [Farrell 11th ed 2008]). To the extent that component should be part ofour calculus here, we conclude that it weights our determination even more heavily in thePeople's favor. Finally, we conclude that the sentence is not unduly harsh or severe.
All concur except Carni, J., who dissents and votes to reverse and grant a new trial inaccordance with the following memorandum.
Carni, J. (dissenting). I respectfully dissent and would reverse the judgment and granta new trial. I agree with defendant that County Court erred in failing to admit in evidencethe transcript of the plea colloquy of defendant's accomplice and a letter written by thataccomplice, both of which contained statements exonerating defendant for the crimesherein. Inasmuch as those items are exculpatory, they "are subject to a more lenientstandard, and will be found 'sufficient if [the supportive evidence] establish[es] areasonable possibility that the statement[s therein] might be true' " (People v Deacon, 96 AD3d965, 968 [2012], appeal dismissed 20 NY3d 1046 [2013], quotingPeople v Settles, 46 NY2d 154, 169-170 [1978]). In my view, the accomplice'sdeclarations against his penal interest were supported by evidence establishing areasonable possibility that they might be true, and the court therefore erred in refusing toadmit them in evidence (seePeople v McFarland, 108 AD3d 1121, 1122 [2013]). Further, the exclusion ofthose statements infringed on defendant's weighty interest in presenting exculpatoryevidence, thus depriving him of a fair trial (see Chambers v Mississippi, 410 US284, 302-303 [1973]; People vOxley, 64 AD3d 1078, 1084 [2009], lv denied 13 NY3d 941 [2010]).Because the evidence of third-party culpability was improperly excluded, I conclude thatdefendant is entitled to a new trial (see Oxley, 64 AD3d at 1084).Present—Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.