| People v Wilson |
| 2014 NY Slip Op 06394 [120 AD3d 1531] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCharles K. Wilson, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin,A.J.), rendered September 17, 2007. The judgment convicted defendant, upon a juryverdict, of attempted murder in the second degree, robbery in the first degree (twocounts), burglary in the first degree (three counts), assault in the first degree (two counts)and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of attempted murder in the seconddegree and dismissing the ninth count of the amended indictment and by directing thatthe sentences on the remaining counts shall run concurrently with respect to each otherand as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [2]), arising from a home invasion, defendantcontends that the attempted murder count was rendered duplicitous by the testimony attrial. We agree with defendant, as we agreed with his codefendant on a prior appeal, thatthe conviction of attempted murder in the second degree must be reversed because, basedon the evidence presented at trial, " 'the jury may have convicted defendant of anunindicted [attempted murder], resulting in the usurpation by the prosecutor of theexclusive power of the [g]rand [j]ury to determine the charges' " (People v Boykins, 85 AD3d1554, 1555 [2011], lv denied 17 NY3d 814 [2011]). We reach this issuedespite defendant's failure to preserve it (see People v Lane, 106 AD3d 1478, 1481 [2013], lvdenied 21 NY3d 1043 [2013]; People v Filer, 97 AD3d 1095, 1096 [2012], lvdenied 19 NY3d 1025 [2012]). We therefore modify the judgment by reversing thatpart convicting defendant of attempted murder in the second degree and dismissing theninth count of the amended indictment. We further agree with defendant that thesentences imposed on the remaining counts must run concurrently with respect to eachother, and we therefore further modify the judgment accordingly (see Boykins, 85AD3d at 1555).
Contrary to defendant's further contention, Supreme Court did not err in refusing tosuppress identification evidence. " 'Multiple photo identification procedures arenot inherently suggestive' " (People v Dickerson, 66 AD3d 1371, 1372 [2009], lvdenied 13 NY3d 859 [2009]). "While 'the inclusion of a single suspect's photographin successive arrays is not a practice to be encouraged, it does not per se invalidate theidentification procedures' " (People v Beaty, 89 AD3d 1414, 1415 [2011], affd22 NY3d 918 [2013]; see Dickerson, 66 AD3d at 1372). Here, although therewas not a significant lapse of time between the presentation of the arrays (seeBeaty, 89 AD3d at 1415; cf. Dickerson, 66 AD3d at 1372), the recordestablishes that different photographs of defendant were used, that the photographs ofdefendant appeared in a different location in each photo array (see Dickerson, 66AD3d at 1372), and that the fillers were very similar in appearance to defendant (seegenerally People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833[1990]). We also conclude that the court did not err in determining that defendant'sstatements to the police during a brief [*2]exchange,made by defendant after he refused to waive his Miranda rights, were voluntaryand thus were admissible for impeachment purposes (see People v Maerling, 64NY2d 134, 140 [1984]; People v Stephanski, 286 AD2d 859, 860 [2001]). Here,the People met their initial "burden at the Huntley hearing of establishing thatdefendant's . . . statements were not the product of 'improper policeconduct' " (People v Rapley [appeal No. 1], 59 AD3d 927, 927 [2009],lv denied 12 NY3d 858 [2009]), and "[d]efendant presented no bona fide factualpredicate in support of his conclusory speculation that his statement[s were] coerced"(id. [internal quotation marks omitted]).
Contrary to defendant's further contention, the court did not abuse its discretion indenying his motion to sever his trial from that of his codefendant (see People vMahboubian, 74 NY2d 174, 183 [1989]). Where counts are properly joined pursuantto CPL 200.40 (1), a defendant may nevertheless seek severance for " 'goodcause shown' " (id.). "Good cause . . . includes, but is notlimited to, a finding that a defendant 'will be unduly prejudiced by a joint trial' "(id., quoting CPL 200.40 [1]). "Upon such a finding of prejudice, the court mayorder counts to be tried separately, grant a severance of defendants or provide whateverother relief justice requires" (CPL 200.40 [1]). Here, defendant contends that, if he hadtestified at trial, he would have been prejudiced by the admission in evidence of astatement of his codefendant indicating that the codefendant had merely "heard" ofdefendant's involvement in this home invasion. We reject that contention, and we notethat the statement is not incriminating and thus does not implicate Bruton v UnitedStates (391 US 123 [1968]), wherein "the Supreme Court held that a defendant isdeprived of his rights under the Confrontation Clause when his codefendant'sincriminating confession is introduced at their joint trial, even if the jury is specificallyinstructed to consider the confession only against the codefendant" (People vEastman, 85 NY2d 265, 271 n 2 [1995]). Defendant further contends that, if he hadtestified at trial, he and his codefendant would have been placed in antagonistic positionsinasmuch as the codefendant would not have been bound by the court's Sandovalruling in cross-examining defendant. Defendant is correct that the codefendant would nothave been bound by the court's Sandoval ruling (see People v McGee, 68NY2d 328, 333 [1986]; People v Padilla, 181 AD2d 1051, 1052 [1992], lvdenied 79 NY2d 1052 [1992]). Nevertheless, inasmuch as both defendants werecharged with principal and accomplice liability for the same crimes, both defendantsnoticed alibi defenses, and both defendants were familiar to the eyewitnesses prior to theshooting, we see no basis for concluding that defendants would have "antagonized" eachother at trial. Had one defendant attacked the other, the "attacking" defendant essentiallywould have taken the position that the eyewitnesses correctly identified only the "other"defendant.
Viewing the evidence, the law and the circumstances of this case, in totality and as ofthe time of representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's contention that defense counsel was ineffective in failing to request amissing witness charge has no merit because there was no basis for such a charge (see People v Hicks, 110 AD3d1488, 1489 [2013], lv denied 22 NY3d 1156 [2014]), and an attorney's"failure to 'make a motion or argument that has little or no chance of success' "does not amount to ineffective assistance (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Viewing the evidence inlight of the crimes 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 generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolution of issues of credibility,as well as the weight to be accorded to the evidence presented, are primarily questions tobe determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]), and "the jury wasentitled to reject certain portions of the victim's testimony while crediting other portions"(People v McCray, 96AD3d 1480, 1480 [2012], lv denied 19 NY3d 1104 [2012]). It cannot besaid that the testimony of the eyewitnesses was " 'incredible and unbelievable,that is, impossible of belief because it [was] manifestly untrue, physically impossible,contrary to experience, or self-contradictory' " (People v Mohamed, 94 AD3d1462, 1463-1464 [2012], lv denied 19 NY3d 999 [2012], reconsiderationdenied 20 NY3d 934 [2012]).
Finally, we have reviewed defendant's remaining contention, and we conclude that ithas been rendered academic as a result of our decision herein. Present—Scudder,P.J., Smith, Centra, Fahey and Peradotto, JJ.