| People v Fox |
| 2014 NY Slip Op 08661 [123 AD3d 844] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Fox, Appellant. |
Norman A. Olch, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSeth M. Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Konviser, J.), rendered November 20, 2007, convicting him of manslaughter in thesecond degree as a hate crime, attempted robbery in the first degree as a hate crime, andattempted robbery in the second degree as a hate crime, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
On the evening of October 8, 2006, the then-19-year-old defendant and his friendsdevised a plan to obtain marijuana, or money to buy marijuana, by luring a gay man totheir neighborhood and stealing marijuana or money from him. As part of the scheme,the defendant and his friends visited an Internet chat room for gay men, using thedefendant's screen name, and struck up an instant messaging conversation with a 29-yearold gay man (hereinafter the victim) who happened to be visiting the chat room at thattime. During the chat, the victim agreed to meet the defendant. Although the originalplan did not involve the use of force, matters escalated when the defendant and thevictim reached Plumb Beach in Brooklyn, where, unbeknownst to the victim, thedefendant's friends were awaiting them. One member of the group, the codefendant IlyaShurov, suddenly attacked the victim and, with the defendant following close behind,chased the victim as he ran back to his car and attempted to flee. Shurov pulled him outof his car, and the struggle continued as the victim fled onto a nearby highway and acrosstwo lanes, with Shurov and the defendant still in pursuit. While attempting to evade hisattackers, the victim entered the third lane and was fatally injured by a passingvehicle.
The defendant and codefendant Anthony Fortunato were tried together, with separatejuries. Fortunato, unlike the defendant, testified in his own defense. The defendantcontends that he was deprived of his constitutional right to be present at a material stageof the trial since he and his jury were not present when Fortunato testified. Thiscontention is without merit since the portion of Fortunato's trial at which the defendantwas not present "was not a critical stage of [the defendant's] trial, as it was unrelated tohis prosecution" (People v Morris, 187 AD2d 460, 461 [1992]; see [*2]People v Warren, 20 NY3d 393, 397-398 [2013];People v Irizarry, 83 NY2d 557 [1994]; People v Bogan, 78 AD3d 855 [2010]; People v Rolle, 4 AD3d542, 543 [2004]; People v Jackson, 219 AD2d 675 [1995]; cf. People vRicardo B., 73 NY2d 228 [1989]).
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. "The credibilitydeterminations of the Supreme Court, which saw and heard the witnesses at thesuppression hearing, are entitled to great weight on appeal, and will not be disturbedunless they are unsupported by the record" (People v Timmons, 54 AD3d 883, 885 [2008]; see People v Oliver, 87 AD3d1035, 1036 [2011]). The record developed at the suppression hearing establishesthat police detectives woke the defendant in his dorm room at about 2:00 a.m. onOctober 10, 2006, and that he voluntarily accompanied the detectives to a precinct stationhouse. They did not ask him any questions pertaining to the incident, or discuss theincident, until 2:52 a.m., and the defendant was not handcuffed or searched while enroute or at the station house. At 2:52 a.m., an interview at the station house began withDetective Frank Byrnes asking the defendant whether he had been in Brooklyn over theweekend. Under these circumstances, "a reasonable person, innocent of any crime, would[not] have believed that [he] was in police custody" (People v Delfino, 234 AD2d382, 383 [1996]; see People v Thomas, 292 AD2d 549, 550 [2002]; People vEllerbe, 265 AD2d 569, 570 [1999]). Although the defendant was never told that hewas free to leave, he neither asked if he could do so, nor protested the questioning(see People v Delfino, 234 AD2d at 383). Significantly, the defendant wasquestioned for only eight minutes before the questioning was stopped because DetectiveByrnes became suspicious of the defendant's answers, and his Miranda warnings(see Miranda v Arizona, 384 US 436 [1966]) were administered (see People vDelfino, 234 AD2d at 383; People v Reaves, 209 AD2d 647, 648 [1994];People v Mosley, 196 AD2d 893, 893-894 [1993]). The defendant's contentionsconcerning suppression are based solely on his own testimony at the suppression hearing,which the court found to be "inconsistent and incredible." There is no basis for rejectingthe hearing court's credibility determination, and we conclude that the evidence supportsits conclusion, based on the testimony of several detectives, that the defendant was nottaken into custody until he was "provided with Miranda warnings andimplicat[ed] himself in the attack on the [victim]." The evidence also supports the court'sconclusion, based upon its credibility determination, "that the defendant was advised ofand knowingly, voluntarily and intelligently waived his Miranda rights not justonce but on three separate occasions" before providing the inculpatory statements atissue.
The defendant's contention that the Supreme Court's charge to the jury did notadequately instruct the jury on intoxication is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the charge, when reviewed in its entirety,adequately instructed the jury on intoxication. The court instructed the jury twice,explicitly, once with regard to the first count, charging the defendant with murder in thesecond degree as a hate crime, and again with regard to the second count, charging thedefendant with murder in the second degree, that it could consider "evidence of thedefendant's intoxication . . . whenever it is relevant to negate an element ofa crime charged," and that, in determining "whether the defendant had the intentnecessary to commit a crime, you may consider whether the defendant's mind wasaffected by intoxicants to such degree that he was incapable of forming the intentnecessary for the commission of that crime." Although the court did not provide the sameinstruction again, it may be presumed that, when the court repeated the charge for"intent" with regard to the counts on which the defendant was convicted, including the"hate" element of manslaughter in the second degree as a hate crime, the jury "[had]'sufficient intelligence' to make [the] elementary logical inferences" (People vSamuels, 99 NY2d 20, 25-26 [2002]; see People v Radcliffe, 232 NY 249,254 [1921]) that here, too, it could consider the defendant's level of intoxication indetermining whether "the required intent [could] be inferred beyond a reasonable doubtfrom the facts [it found] to have been proven." The cases relied upon by the defendantare distinguishable from the instant case since, in those cases, the court read from section15.25 of the Penal Law, which provides the general intoxication charge, but did notexplain the charge or relate it "in any manner . . . to the evidence"(People v Valentine, 54 AD2d 568, 568 [1976]; see People v Lawrence,78 AD2d 702 [1980]; People v Summer, 64 AD2d 658, 659 [1978]). Here, incontrast, the court related the effect of intoxication to the specific element of intent inconnection with the first and second counts, instructed that the jury could considerevidence of intoxication whenever relevant to negate an element of "a crime charged,"and provided a specific definition of the required intent with regard to the counts onwhich [*3]the defendant was convicted.
The defendant's contention that the evidence was legally insufficient to establish hisguilt of a hate crime beyond a reasonable doubt is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event,viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of the three hate crimes of which he was convicted beyond a reasonabledoubt (see People v Assi, 14NY3d 335, 340 [2010]; People v Fortunato, 75 AD3d 557 [2010]). Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel under the United States Constitution (see Strickland vWashington, 466 US 668, 688 [1984]). Moreover, the defendant was not deprived ofthe effective assistance of counsel under the New York Constitution since, viewingdefense counsel's performance in totality, counsel provided meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54NY2d 137, 147 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's contentions that he was deprived of his constitutional rights topresent evidence and to a fair trial are unpreserved for appellate review and, in any event,without merit. The defendant's remaining contentions are without merit.
Balkin, J.P., Leventhal, Hinds-Radix and LaSalle, JJ.,concur.
Motion by the respondent to strike stated material on page 39 of the appellant's mainbrief on an appeal from a judgment of the Supreme Court, Kings County, renderedNovember 20, 2007, on the ground that it refers to matter dehors the record. By decisionand order dated March 31, 2014, the motion was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the motion is granted, and the sentence on page 39 of the appellant'smain brief which references the defendant's motion pursuant to CPL 440.10 and thefollowing sentence are deemed stricken and have not been considered in thedetermination of the appeal (seePeople v Stocks, 101 AD3d 1049, 1052 [2012]). Balkin, J.P., Leventhal,Hinds-Radix and LaSalle, JJ., concur.