| People v Gray |
| 2015 NY Slip Op 01491 [125 AD3d 1107] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDaquan Kareem Gray, Also Known as Day Day, Appellant. |
David E. Woodin, Catskill, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Sullivan County(McGuire, J.), rendered August 7, 2012, upon a verdict convicting defendant of thecrimes of gang assault in the first degree, assault in the first degree, criminal use of afirearm in the first degree (two counts) and criminal possession of a weapon in thesecond degree (two counts).
Defendant was charged in a six-count indictment for crimes stemming from theshooting of the victim in his neck at close range, causing him to become paralyzed fromthe chest down.[FN1] Following a jury trial, defendant wasconvicted of gang assault in the first degree, assault in the first degree, two counts ofcriminal use of a firearm in the first degree and two counts of criminal possession of aweapon in the second degree. He was thereafter sentenced as a second violent felonyoffender to an aggregate prison term of 65 years, to be followed by five years ofpostrelease supervision. Defendant now appeals.
Defendant asserts that County Court erred in permitting the People to use evidenceof his withdrawn alibi notice to impeach his credibility on cross-examination. We agree.The Court of Appeals has unequivocally established that the People may not use adefendant's notice of alibi for impeachment purposes on cross-examination where thedefendant has withdrawn [*2]such notice prior to trial(see People v Brown, 98 NY2d 226, 235 [2002]; cf. People v Rodriguez, 3NY3d 462, 467 [2004]). Here, three months prior to trial, defendant gave notice thathe intended to call six alibi witnesses who would "testify that at the time of the crime[he] was [in] South Fallsburg, New York." On the eve of trial, defendant withdrew thealibi notice.
At trial, defendant testified and acknowledged that he was in the Village ofMonticello, Sullivan County, in the area of the shooting when it occurred. In response,the People aggressively questioned defendant regarding his withdrawn alibi notice,asking, over repeated objections, whether he had asked his wife "to come in[to CountyCourt] and lie for [him]." When defendant denied that he had done so, the Peopleresponded, "Do you know what the consequences for perjury are?" and "Do you knowthat perjury is a crime?" Later in the presence of the jury, upon the application of thePeople, County Court took judicial notice of the alibi notice filed on behalf of defendant.The People were permitted to question defendant concerning the substance of the notice,again asking defendant if he had previously intended to call his wife to testify that he wasin South Fallsburg on the night of the incident and whether he was aware of theconsequences of perjury.[FN2]
By his generalized objections, defendant failed to preserve a constitutional claim(see People v Kello, 96 NY2d 740, 743-744 [2001]; see also People v Ashley, 8AD3d 136, 136 [2004], lv denied 3 NY3d 670 [2004]), but did preserve thecommon-law evidentiary issue for our review (see People v Brown, 98 NY2d at235). Thus, we apply nonconstitutional harmless error analysis, by considering whether" 'the proof of . . . defendant's guilt, without reference to the error, isoverwhelming' and [if] there is [a] 'significant probability . . . that the jurywould have acquitted . . . defendant had it not been for the error' "(People v Byer, 21 NY3d887, 889 [2013], quoting People v Crimmins, 36 NY2d 230, 241-242[1975]).
Here, evidence of defendant's guilt was not overwhelming (see People v Brown, 114AD3d 1017, 1020 [2014]). In addition to the lack of physical evidence linkingdefendant to the crimes, there are numerous inconsistencies in the testimony of thePeople's witnesses regarding, among other things, the lighting at the time and location ofthe shooting, the number and identities of the individuals present, who defendant leftwith following the shooting, what direction he traveled in, and whether defendant carrieda weapon as he allegedly fled. Furthermore, despite being questioned by policeimmediately following the shooting, the victim waited months before making a statementto the police that implicated defendant.
Turning to the second prong of the harmless error analysis, we conclude that a [*3]significant probability exists that the jury would haveacquitted defendant without this error. Notably, during deliberations, the jury asked "if[defendant's] original alibi of defense [was] in evidence." As this "case turned totally oncredibility," the error here cannot be deemed harmless, particularly in light of the jury'sclear interest in defendant's alibi notice when making its credibility assessments (People v Allen, 13 AD3d892, 894 [2004], lv denied 4 NY3d 883 [2005]; see People v Caba, 66 AD3d1121, 1124 [2009]). Defendant's remaining arguments are either academic orwithout merit.[FN3]
Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the County Court of Sullivan County for a new trial.
Footnote 1:Defendant's threecodefendants pleaded guilty prior to trial.
Footnote 2:The People maintain thattheir use of information from defendant's withdrawn alibi notice was proper because,prior to withdrawing his alibi notice, defendant allegedly stated, through his attorneyduring a pretrial conference in open court, that he intended to call "certain people"pursuant to the alibi notice given by his prior attorney. The People thus attempt todistinguish the use of this statement to impeach defendant on cross-examination from theuse of information in a withdrawn alibi notice for impeachment purposes, the latter ofwhich is clearly prohibited by People v Brown (supra) and People vRodriguez (supra). We conclude that no meaningful distinction exists here,and we ascertain nothing in the reasoning underlying those cases to support drawing sucha distinction. Defense counsel's pretrial conference statement appears to be nothing morethan a reminder to County Court regarding the actions of his predecessor. In any event, itis undisputed that defendant subsequently withdrew his alibi notice.
Footnote 3:Although defendant'scontention that he was improperly sentenced is rendered academic by our reversal of hisjudgment of conviction, we note that he correctly argues that any sentence for criminaluse of a firearm in the first degree under the third count of the indictment must runconcurrently to a sentence for gang assault in the first degree under the first count of theindictment (see Penal Law § 70.25 [2]; People v McFarland, 106AD3d 1129, 1132 [2013], lv denied 22 NY3d 1140 [2014]; People vAbdullah, 298 AD2d 623, 624 [2002]).