| People v Silvestre |
| 2014 NY Slip Op 04562 [118 AD3d 567] |
| June 19, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Roger Silvestre, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered January 26,2010, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him, as a second felony offender, to a term of 25 years, unanimouslyaffirmed.
The evidence at trial established that defendant participated in the attack that resultedin the decedent's death and the wounding of another victim. The other victim, RandolphHarrell, testified that he saw defendant swing a knife at the decedent in a "vicious"manner. Detectives followed a trail of blood from the crime scene to an apartment wheredefendant lived with his brother, the codefendant. They first encountered defendant in ahospital, where he had been treated for wounds, including cuts to his head, leg andhands. The detectives vouchered a hospital bag containing defendant's blood-soakedshirt, jeans, and other clothing, and a forensic biologist from the Office of the ChiefMedical Examiner (OCME) testified that blood samples taken from this clothingmatched the DNA of both defendant and the decedent. Further, a physician at the OCMEwho conducted the autopsy of decedent testified that the decedent's death was caused bystab wounds, as well as gunshot wounds, which were fatal either separately or inconjunction with each other. The physician also explained that, based on a photograph ofone of defendant's hands taken shortly after the subject incident, he had sustained a cut tothe side of his index finger closer to the thumb. The physician testified that this injurywas in "the classic location for a person holding a knife and then the knife sliding andcutting the finger."
Prior to summations, the court held a conference during which it sought to elicit fromthe People which counts they intended to submit to the jury. The court asked about thecharge of fourth-degree criminal possession of a weapon, which, according to theindictment, related to the allegation that "the defendants, acting in concert with eachother . . . did possess a knife with intent to use the same unlawfully againstanother." The prosecutor responded, "Out." The court asked defense counsel if he was"asking for [the charge]" and he responded, "Yes, I request it." The court then stated that"I don't think there is anything that would stop the People from dismissing that count,and I don't believe it's a lesser included of any existing count, counsel." Addressing itselfto defendant's attorney, the court stated that "I don't think the law prevents the Peoplefrom dismissing it at this stage, counsel . . . . Again . . . if youthink the law is to the [*2]contrary, I'll take a look at it.That's my understanding, the People can dismiss it any time prior to the submissionunless it could be supported as a lesser included offense of a charge, then it doesn't get tobe dismissed."
Defendant argues on appeal that the court improperly deferred to the People's desireto withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degreeassault and first-degree vehicular assault, in connection with his having intentionallydriven a pickup truck into a police officer. Before the trial of those charges, theprosecutor announced the People's intention to withdraw the vehicular assault count, andthe court agreed with the prosecutor that the People had "the authority" to do so. TheCourt of Appeals disagreed, holding that "the issue was one for the trial court'sdiscretion, not the prosecutor's" (18 NY3d at 695).
As a preliminary matter, we reject the People's argument that defendant failed topreserve the Extale issue for appeal. By requesting that the weapons possessioncount be submitted to the jury immediately after the prosecutor requested that it bedismissed, defense counsel implicitly urged the court to exercise its discretion to submitthe count to the jury. Defense counsel was not required to press the point after the courtexpressly agreed with the People's position that they had the ultimate authority onwhether the count would be submitted.
On the merits, we agree with defendant that the court's position with respect to thecount was no different from that of the trial court in Extale, which was found bythe Court of Appeals to be erroneous. No fair reading of the trial record supports thePeople's argument that the trial court exercised its discretion in dismissing the charge.Indeed, its comment that "the People can dismiss [the count]" was equivalent to theExtale trial court's comment that the prosecutor "ha[d] the authority" to dismissthe vehicular assault count (18 NY3d at 693). Nevertheless, we agree with the Peoplethat the court's actions amounted to harmless error. In Extale, the Court ofAppeals intimated that harmless error analysis applies to a trial court's failure to exercisediscretion in permitting withdrawal of a count of an indictment, by stating, "Nor can webe sure that the dismissal of the vehicular assault count did not affect the jury's verdict"(id. at 696). There, the Court noted that the jury may have opted to convict on thevehicular assault charge, which would have benefitted the defendant because it, unlikethe assault charge, is not classified as a violent felony.
Here, there is no reasonable possibility that the jury, had it been presented with themisdemeanor weapons possession charge, would have chosen to convict defendant onthat count, instead of on the first-degree manslaughter charge. As detailed above, therewas significant evidence tying defendant to the stabbing of the decedent, including alarge amount of blood on defendant's clothes. DNA from that blood matched defendant'sDNA and the decedent's, and injuries to defendant's hand were consistent with use of aknife. In light of this, there simply is no reasonable basis for concluding that the jurywould have opted to forego convicting defendant on a manslaughter charge in favor ofconvicting him on a weapons possession charge which only alleged intent to use a knife,but not actual use of it.
Moreover, there is no evidence in the record linking the knife which forms the basisof the possession charge at issue to the decedent's death. The detective who recoveredthat knife, across the street from the building lobby where the decedent was killed,testified that he could retrieve no fingerprint evidence from the knife. In addition,although he stated that he swabbed the knife for DNA, there was no testimony from theDNA expert or anyone else that defendant's [*3]DNAwas found on the knife. Finally, Harrell, having been shown the knife, could not identifyit as the one used during the attack, and defendant's counsel stated during the chargeconference that he "[did not] see how the People could argue that was the knife." Basedon the foregoing, there was simply no basis for the jury to vote to convict on the weaponspossession charge in lieu of the manslaughter charge, as some sort of compromiseverdict. This contrasts with Extale, where, as the Court of Appeals found, the jurycould quite reasonably have voted to convict the defendant of first-degree vehicularassault, as opposed to first-degree assault.
We further find that the verdict comported with the weight of the evidence. Theevidence outlined above amply demonstrated that defendant was directly involved in thestabbing of the decedent. While there were several inconsistencies between Harrell'saccount of the incident before the grand jury and at trial, they do not provide a basis fordisturbing the jury's determination crediting his testimony (see People v Sanchez,278 AD2d 174 [1st Dept 2000], lv denied 96 NY2d 834 [2001]). Indeed, theinconsistencies related to incidental matters such as whether the stabbing started shortlybefore the shooting or vice versa, and had no bearing on the question of defendant's guilt.Likewise, Harrell's oft-repeated response that he could not recall the answer to a questionwas not an impediment to the jury's decision to convict, because those responsesprimarily went to his criminal past and the benefits he had been offered to testify, but notto the actual events that led to decedent's death. The issue concerning Harrell's initialreluctance to cooperate and the subsequent offer by the People to withdraw certaincharges against him was thoroughly explored at trial and the jury was entitled to creditHarrell's testimony notwithstanding it. Similarly, Harrell's criminal history was also thesubject of extensive cross-examination, and the jury's weighing of his background anddeciding to credit his testimony is entitled to deference (see People v Reyes, 17 AD3d205 [1st Dept 2005], lv denied 5 NY3d 768 [2005]).
Defendant maintains that Harrell's entire testimony should have been strickenbecause of his lack of credibility and volatile behavior on the witness stand. However,this argument is unpreserved and we decline to review it in the interests of justice, sincecounsel never made such a request. In any event, under the circumstances due processdid not require the court to take the drastic measure of striking the entire testimony of theonly testifying eyewitness. Defendant's argument that he was denied the right to a fairtrial because Harrell testified about what defendant characterizes as uncharged prior badacts, is similarly unpreserved, and we decline to review it in the interests of justice. Thisargument also lacks merit. The testimony that defendant was "dusted" at the time of theaccident cannot be said to have been prejudicial, since there is no basis to conclude thatthe jury understood this to be a drug reference, and since the court sustained a generalobjection to the testimony.
We similarly reject defendant's position that his trial was corrupted by Harrell'sdescription of a threat allegedly made by the codefendant toward the decedent and anoutburst Harrell made on the witness stand immediately thereafter, apparently addressedtowards the jury. Defendant only objected generally to the testimony about the threat, anddid not join in the codefendant's motion for a mistrial after Harrell allegedly made hostilestatements to the jury. We likewise decline to review this unpreserved claim in theinterest of justice. In any event, the court instructed the jury to disregard the testimonyconcerning a threat. Further, the court polled the jurors concerning that testimony andalso about the outburst, and each juror responded that he or she could remainimpartial.
Defendant's argument that his right to a fair trial was also violated because ofHarrell's [*4]repeated invocation of the Fifth Amendmentwhen asked about a material witness hearing at which he also engaged in severaloutbursts, is also unpreserved and we decline to review it in the interest of justice.Defense counsel was equivocal about whether Harrell was truly not entitled to exercisethat right. In any event, Harrell properly invoked the Fifth Amendment because he had"reasonable cause to apprehend danger from a direct answer" to questions about hisoutbursts at the material witness hearing (Ohio v Reiner, 532 US 17, 21 [2001][internal quotation marks omitted]). We also reject defendant's claim that he should havebeen permitted to introduce evidence that the decedent had been suspected of murder andhad written rap songs which boasted of violent acts, including homicide. The statementsmade by the prosecutor which such evidence would have been designed to counter werenot intended to vouch for the decedent's good character (see People v Ruine, 258AD2d 278, 279 [1st Dept 1999], lv denied 93 NY2d 929 [1999]).
Finally, we perceive no basis for reducing the sentence. Concur—Mazzarelli,J.P., Friedman, DeGrasse, Freedman and Kapnick, JJ.