| People v Polk |
| 2014 NY Slip Op 04561 [118 AD3d 564] |
| June 19, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Quinndale Polk, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Molly Boothof counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel),for respondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), renderedDecember 9, 2005, convicting defendant, after a jury trial, of four counts of murder inthe second degree and two counts of kidnapping in the first degree, and sentencing himto an aggregate term of 50 years to life, unanimously affirmed.
This prosecution stems from the robbery, kidnapping and murder of Juan Martin DelCampo and Gabriel Chantes Rosales (Chantes). The evidence at trial was subject to littledispute and consisted primarily of defendant's written and videotaped confession. On themorning of May 16, 2001, the bodies of Del Campo and Chantes were found inRiverside Park near West 152nd Street in Manhattan. Each victim had been shot in thehead. Del Campo and Chantes had last been seen leaving the restaurant where theyworked in Little Falls, New Jersey on May 15, 2001 at about 10:25 p.m. According todefendant's confession, the victims were confronted in the restaurant's parking lot bydefendant and Lamar Lee, his accomplice, as they were standing alongside of DelCampo's Jeep. At gunpoint, defendant and Lee stole $60 and a watch from Del Campoand $10 from Chantes. The victims were forced into the Jeep from which defendantremoved a cell phone. Defendant and Lee then forcibly drove Del Campo and Chantesfrom the parking lot, then across the George Washington Bridge to Riverside Park whereLee fatally shot them. After killing the victims, defendant and Lee drove back to NewJersey in the Jeep. Defendant also admitted to using the cell phone following themurders.
With respect to each victim, the jury convicted defendant of one count of kidnappingas well as two felony murder counts that were predicated on kidnapping and robbery,respectively. The jury, however, found that the court lacked territorial jurisdiction withrespect to the two robbery counts set forth in the indictment.
The trial court instructed the jury that the prosecution was required to establish theState's territorial jurisdiction by a preponderance of evidence. As the People concede, thecharge was [*2]erroneous in this regard.[FN1]On the contrary, thePeople were required to establish the State's territorial jurisdiction by proof beyond areasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover,territorial jurisdiction is not waivable (id. at 471). Our analysis, however, doesnot end with a citation to McLaughlin. The issue before us involves the trialcourt's charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to acourt's territorial jurisdiction cannot be waived, a claim of error in a court's instructionson the subject requires preservation by way of an appropriate objection at the court offirst instance. Nonetheless, the requirement of preservation is subject to an exception thatexists for "mode of proceedings" errors that consist of the most fundamental flawsimplicating jurisdictional matters or constitutional rights that go to the very heart of thecriminal justice process (seePeople v Hanley, 20 NY3d 601, 604-605 [2013]). Defendant asserts that themode of proceedings exception applies here.
People v Carvajal (6NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. InCarvajal, the Court noted that the defendant had "relinquished his opportunity tohold the People to their burden of proof, and did not preserve his current contention thatthe jury should have decided whether the People proved jurisdiction beyond a reasonabledoubt" (id. at 311-312). Citing People v Greenberg (89 NY2d 553[1997]), the Carvajal Court aptly observed that "a defendant's failure to request ajury charge on territorial jurisdiction amounts to waiver of a jury charge claim, thatfailure does not amount to waiver of the fundamental question whether—as amatter of law—this State has the power to hear the case" (id. at 312). Inthis case, it is undisputed that defendant did not object to the trial court's erroneouscharge on the burden of proof with respect to territorial jurisdiction. Guided byCarvajal, we find that defendant was required, but failed, to preserve his presentchallenge to the trial court's charge on jurisdiction. We further decline to reviewdefendant's challenge in the interest of justice. As an alternative holding, we find that theerror was harmless because the charge on territorial jurisdiction could have only affectedthe verdict on the dismissed robbery counts.
Defendant has similarly failed to preserve for our review his contention that the court"diluted the prosecution's burden of proof" by "suggesting" that he was obligated toprove that he had detached himself from Lee's actions (see e.g. People v Melendez, 16NY3d 869 [2011]) and we decline to review it in the interest of justice.[FN2]The contention lacksmerit, in any event. The court specifically instructed the jury that "[a] defendant is notrequired to prove he is not guilty or to prove anything" and that "the burden of proofnever shifts to the defendant." The jurors are presumed to have followed the court'sinstructions on the law (Peoplev Baker, 14 NY3d 266, 274 [2010]). Accordingly, notwithstanding defendant'sinterpretation, the charge did [*3]not expressly orimplicitly shift or reduce the prosecution's burden of proof. We are also not persuaded bydefendant's criticism of isolated portions of the court's charge on felony murder andacting in concert. The entire charge, taken as a whole, conveyed the correct standards tothe jury (see e.g. People vMedina, 18 NY3d 98, 104 [2011]).
Defendant next argues that his conviction of felony murder predicated on robbery isrepugnant to the jury's finding that the court lacked territorial jurisdiction under therobbery counts. The argument is unpersuasive. A person commits felony murder when"[a]cting either alone or with one or more other persons, he commits or attempts tocommit" an enumerated felony, such as robbery, "and, in the course of and in furtheranceof such crime or of immediate flight therefrom, he, or another participant, if there be any,causes the death of a person other than one of the participants" (Penal Law§ 125.25 [3]). Pursuant to CPL 20.20 (1) (a), a person may be prosecuted inNew York for an offense when an element of the offense occurred within the State.Accordingly, an element of felony murder occurs in New York when a homicide iscommitted in the State in immediate flight from a robbery or another designated felonyeven if it is committed in another state (see People v Stokes, 88 NY2d 618, 625[1996]). In this case, the jury heard evidence that defendant and Lee held the victimscaptive during the entire time that intervened between the robberies in New Jersey andthe murders in New York. There was also proof that defendant and Lee could havedriven the victims from the restaurant's parking lot to the site of the murders within aslittle as 25 to 40 minutes. Although distance and time are factors to be considered, theyare not determinative of the issue of "immediate flight" (see People v Donovan,53 AD2d 27, 33-34 [3d Dept 1976]). Accordingly, there is no repugnancy betweendefendant's conviction of felony murder predicated on robbery and the finding of nojurisdiction with respect to the underlying robbery counts. As set forth in his brief,defendant makes no claim that his conviction of kidnapping-based felony murder countwas repugnant.
We reject defendant's claim that his sentence is excessive. We have considereddefendant's remaining contentions and find them unavailing. Concur—Mazzarelli,J.P., Friedman, Renwick, DeGrasse and Gische, JJ.
Footnote 1:In order for a court ofthe State to exercise criminal jurisdiction, "either the alleged conduct or someconsequence of it must have occurred within the State" (People v McLaughlin,80 NY2d 466, 471 [1992], citing CPL 20.20).
Footnote 2:On this point, defendantasserts that with respect to the kidnapping counts and the felony murder countspredicated on kidnapping, he never shared "Lee's intent to prevent the liberation" of DelCampo or Chantes. This claim is refuted by defendant's admission that upon exiting theJeep in Riverside Park, he held Del Campo while Lee took hold of Chantes.