| People v Brown |
| 2015 NY Slip Op 02042 [126 AD3d 516] |
| March 17, 2015 |
| Appellate Division, First Department |
[*1](March 17, 2015)
| The People of the State of New York,Respondent, v James Brown, Appellant. |
Robert DiDio & Associates, Kew Gardens (Danielle Muscatello of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel),for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., at speedy trialmotion, suppression hearings and first trial; Ruth Pickholz, J., at second trial), renderedSeptember 12, 2008, as amended November 7, 2008, convicting defendant, after a jurytrial, of robbery in the first degree, and sentencing him, as a persistent violent felonyoffender, to a term of 22 years to life, unanimously affirmed.
In denying defendant's speedy trial motion, the trial court excluded the period fromJuly 17, 2007, when the People served and filed an off-calendar certificate of readiness,until August 8, 2007, when they announced that they were not ready for trial. Becausethe court found this 22-day excludable period to be dispositive of defendant's speedy trialclaim, it did not rule on other periods claimed by the People to be excludable.
Defendant argues that pursuant to People v Sibblies (22 NY3d 1174 [2014]), the court shouldhave inquired further or conducted a hearing as to why the People were not ready onAugust 8, so that it could determine whether the previously filed certificate of readinesswas illusory. Under the particular circumstances of this case, we find this argumentunavailing.
In Sibblies, after filing an off-calendar certificate of readiness on February22, 2007, the People requested the medical records of the victim. At the next court dateon March 28, 2007, the People stated that they were not ready to proceed because theywere "continuing to investigate and [were] awaiting [the assault victim's] medicalrecords" (22 NY3d at 1180). In a plurality opinion, the Court of Appeals, based ondifferent rationales, agreed that the People's off-calendar certificate of readiness wasillusory on the record before them.
The three judge concurrence by Chief Judge Lippman "would hold that, ifchallenged, the People must demonstrate that some exceptional fact or circumstancearose after their declaration of readiness so as to render them presently not ready for trial"at the next court appearance after filing the certificate (22 NY3d at 1178). Chief JudgeLippman found that the People's desire to strengthen their case did not satisfy thisrequirement.
The three judge concurrence by Judge Graffeo "would decide th[e] case on anarrower basis" (22 NY3d at 1179). While recognizing established precedent that therequirement of actual readiness under CPL 30.30 "will be met unless there is 'proof thatthe readiness statement [*2]did not accurately reflect thePeople's position' " (id. at 1180, quoting People v Carter, 91NY2d 795, 799 [1998]) and that "there is a presumption that a statement of readiness istruthful and accurate" (22 NY3d at 1180), Judge Graffeo found the statement ofreadiness "illusory" because "[t]he People initially declared that they were ready for trialon February 22 but within days sought copies of the injured officer's medicalrecords,"admitted at the next calendar call that they "were not in fact ready to proceedbecause they were continuing their investigation" and that they "needed to examine themedical records to decide if they would pursue introduction of the records into evidenceat trial," and then "gave no explanation for the change in circumstances between theinitial statement of readiness and the[ir] subsequent admission that the[y]. . . were not ready to proceed without the medical records" (22 NY3d at1181).
Following analogous precedent pertaining to plurality opinions by the United StatesSupreme Court, we apply the narrower approach of Judge Graffeo, which leaves intactwell-settled law that a post-certificate assertion that the People are not ready does not, byitself, vitiate the previously filed certificate of readiness (see Marks v UnitedStates, 430 US 188, 193 [1977] ["(w)hen a fragmented Court decides a case and nosingle rationale explaining the result enjoys the assent of five Justices, the holding of theCourt may be viewed as that position taken by those Members who concurred in thejudgments on the narrowest grounds" (internal quotation marks omitted)]; see also For the People Theatres ofN.Y., Inc. v City of New York, 6 NY3d 63, 79 [2005]).
The record shows that on July 9, 2007, the court stated that "defense counsel iscurrently on trial" and asked the prosecution about alternative dates. The prosecutorresponded, "7/23 is good. The week of 7/30 is bad." The court adjourned the case toAugust 8, 2007. On July 17, the People filed and served the certificate of readiness.
On August 8, the prosecutor stated that the People were not ready for trial. The courtnoted that defense counsel was on trial and defendant voiced his dissatisfaction andrequested new counsel. Noting that defense counsel was "very busy" and that he hadbeen "on trial [the] last time" as well, the court granted defendant's request for newcounsel and declared that, because of defendant's multiple requests for new counsel, hisspeedy trial time would stop running.
On the speedy trial motion, defendant's new counsel argued that even if thecertificate of readiness had been filed and served properly on July 17, it was illusorybecause the People were not actually ready on the next court date. The court disagreed,stating that this was not a case where the People filed their certificate even though theirwitnesses were not ready. The court then denied defense counsel's request for ahearing.
On this record, unlike, Sibblies, there is no "proof that the readinessstatement did not accurately reflect the People's position,"so as to render the priorstatement of readiness illusory (Sibblies, 22 NY3d at 1180 [Graffeo, J.,concurring] [internal quotation marks omitted]). Rather, defense counsel merelyspeculated that the certificate of readiness was illusory because the People announcedthat they were not ready at the next court appearance after it was filed, which isinsufficient to rebut the presumption that the certificate of readiness was accurate andtruthful (see e.g. People v Acosta, 249 AD2d 161, 161-162 [1st Dept 1998] [thedefendant did not submit evidence to contradict court's findings and failed todemonstrate that the People's readiness statements were illusory], lv denied 92NY2d 892 [1998]).
Indeed, the record supports an inference that the People made an initial strategicdecision to proceed, if necessary, with a minimal prima facie case. At the calendar call onJuly 9, the [*3]prosecutor stated that July 23 was "good"for the People for hearing and trial. The filing of the certificate of readiness on July 17was consistent with that statement. In contrast, in Sibblies, the People sought theinjured officer's medical records within days of filing the certificate and admitted at thenext court appearance that they were not ready to proceed without them. Thus, theprosecutor was required to explain the change in circumstances because if the Peopleneeded the medical records to be ready on March 28, then they could not have been readyon February 22 when the certificate of readiness was filed.
Defendant's conviction for first-degree robbery under Penal Law§ 160.15 (3) is supported by legally sufficient evidence and is not againstthe weight of the evidence. There is no reason to disturb the jury's determination that thehypodermic needle used to threaten one victim during the robbery was a dangerousinstrument under Penal Law § 10.00 (13) (see People v Nelson, 215AD2d 782 [2d Dept 1995]). Contrary to defendant's contention that some showing ofactual injury was required, the needle may be a dangerous instrument, "regardless of thelevel of injury actually inflicted" (Matter of Markquel S., 93 AD3d 505, 506 [1st Dept2012], lv denied 19 NY3d 806 [2012]; see also People v Molnar, 234AD2d 988 [4th Dept 1996], lv denied 89 NY2d 1038 [1997]). Even if the needlewas uncontaminated and was threatened to be used by the non-HIV-positive defendant,the jury could have found that it was capable of causing serious puncture wounds ortransmitting any harmful disease.
Since defendant did not request a second independent source hearing for one of thevictims, his claim that the court should have conducted a de novo hearing is unpreservedand we decline to review it in the interest of justice (see CPL 470.05 [2]). As analternative holding, we find it to be without merit. The trial court's finding that the victimhad an independent source for his identification is amply supported in the record. Thevictim viewed defendant face-to-face before and during the crime, on the street and in thestore, and over an extended period of time, and gave a description that matcheddefendant's actual appearance. While he testified at the first trial that he was sure that hehad correctly identified defendant in court because he had previously identified him in alineup, which caused a mistrial, that testimony did not serve to negate his priorunequivocal testimony at the independent source hearing that he had an independentrecollection of defendant from the crime itself.
The court did not improvidently exercise its discretion in denying defendant's requestfor an in-court lineup (see People v Benjamin, 155 AD2d 375 [1st Dept 1989],lv denied 75 NY2d 867 [1990]). The record demonstrates that the victims wereable to make reliable in-court identifications without a lineup. Their consistent accountsof the robbery showed that they both had a good opportunity to view the robber's face atclose range. Moreover, one victim never viewed any pretrial identification procedure, sohis in-court identification could only have been based on his recollection from the nightof the crime (see People vBrooks, 39 AD3d 428 [1st Dept 2007], lv denied 9 NY3d 873[2007]).
Defendant's claim that the court unduly limited the time for his questioning duringvoir dire is unpreserved and we decline to review it in the interest of justice. As analternative holding, we find it to be without merit. Unlike People v Steward (17 NY3d104 [2011]), the facts of this case did not suggest a need to explore possible jurorbiases beyond the inquiry already performed by the court.
Defendant's claim that the court improperly prevented his counsel from asking jurors"whether the HIV allegations might affect their ability to deliberate fairly" is unpreservedand we [*4]decline to review it in the interest of justice.Nor did defense counsel complain that the court's inquiries were insufficient to properlyassess whether the prospective jurors could be fair. As an alternative holding, we findthat the court adequately explored the issue with the jurors (see e.g. People vDinkins, 278 AD2d 43 [1st Dept 2000], lv denied 96 NY2d 828 [2001]), andthe fact that the jury ultimately acquitted defendant of one of the alleged robberiesinvolving the needle showed that the jurors were able to be fair.
Defendant's general objection failed to preserve a challenge to the procedureemployed by the court in resolving his Batson application (see People vRichardson, 100 NY2d 847, 853 [2003]; People v McLeod, 281 AD2d 325[1st Dept 2001], lv denied 96 NY2d 899 [2001]), and we decline to review it inthe interest of justice. As an alternative holding we find that even if the court'sBatson analysis was "less than ideal" (People v Smocum, 99 NY2d 418,421 [2003]), the court did not prevent defendant from making a particularized objection.Furthermore, the court's finding that the prosecutor had given neutral, i.e.,non-pretextual, grounds for the challenges, is supported by the record (see e.g. Peoplev Montalvo, 293 AD2d 380, 381 [1st Dept 2002], lv denied 98 NY2d 699[2002]).
Defendant's claim that the trial court failed to instruct the jury to consider theevidence separately with respect to each robbery and that the prosecutor commingled theevidence on summation, thereby depriving him of due process and a fair trial isunpreserved, since he did not object to the prosecutor's summation, and he did notrequest or object to the absence of a "no commingling" charge (see People v Harris, 29 AD3d387 [1st Dept 2006], lv denied 7 NY3d 757 [2006]). We decline to reviewthe claim in the interest of justice. As an alternative holding, we find that the court'scharge as a whole "indicate[s] the independent nature of the crimes and the jury'sobligation to consider them separately" (People v Goodfriend, 64 NY2d 695, 697[1984]). Even though the prosecutor argued during summation that there weresimilarities between the two crimes, the jury acquitted defendant of one the tworobberies, showing that jury was able to distinguish the evidence presented as to eachincident (see generally People vSantana, 27 AD3d 308, 310 [1st Dept 2006], lv denied 7 NY3d 794[2006]). Concur—Gonzalez, P.J., Friedman, Andrias, Gische and Kapnick,JJ.