| People v Jackson |
| 2015 NY Slip Op 02623 [126 AD3d 1508] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAlbert Jackson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered November 28, 2011. The judgment convicted defendant, upon a juryverdict, of attempted burglary in the second degree, possession of burglar's tools, robberyin the second degree, burglary in the first degree, reckless endangerment in the firstdegree and unauthorized use of a vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reversing those partsconvicting defendant of robbery in the second degree, burglary in the first degree, andunauthorized use of a vehicle in the first degree, suppressing the statements made bydefendant on November 17, 2010, reducing that part convicting defendant of recklessendangerment in the first degree under count nine of the indictment to recklessendangerment in the second degree (Penal Law § 120.20) and vacating thesentence imposed on that count and as modified the judgment is affirmed, a new trial isgranted on counts 5, 6 and 10 of the indictment, and the matter is remitted to SupremeCourt, Erie County, for sentencing on count nine of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted burglary in the second degree (Penal Law§§ 110.00, 140.25 [2]), possession of burglar's tools(§ 140.35), robbery in the second degree (§ 160.10 [2] [a]),burglary in the first degree (§ 140.30 [2]), reckless endangerment in the firstdegree (§ 120.25), and unauthorized use of a vehicle in the first degree(§ 165.08). Defendant's conviction stems from events that occurred on twoseparate days. On August 16, 2010, defendant was arrested after the police observed himattempting to break into a house with a screwdriver, and he gave a statement to the policedenying that he was attempting to break into the house. On November 17, 2010, a71-year-old man was stabbed several times upon encountering an intruder in his garage.The intruder stole the victim's wallet, cell phone, and vehicle, and fled the scene. Thevictim contacted the police, and the police tracked the location of the victim's cell phoneand located defendant and three other individuals inside the victim's vehicle. Defendant,who was the driver of the vehicle, led the police on a high-speed chase before crashingthe vehicle. After he was arrested, defendant gave statements at the police stationadmitting that he was in the victim's garage, attacked him, robbed him, stole the vehicle,and led officers on a high-speed chase. Defendant's statements consisted of handwrittennotes prepared by a police officer that defendant signed, a typed statement that defendantalso signed, and a videotape of the interrogation, all of which were admitted in evidenceat trial.
We agree with defendant that Supreme Court erred in failing to suppress thestatements he made to the police on November 17, 2010. The evidence at theHuntley hearing established that a police officer transporting defendant to thepolice station on that date began to read the Miranda rights to defendant, butdefendant interrupted the officer after a few words and told him that he knew his rights.At the police station, defendant was interviewed by a different officer [*2]but was not read his Miranda rights until after hegave his statements. We agree with defendant that his statements should have beensuppressed because he was not advised of his Miranda rights. It is well settledthat "[a]n individual taken into custody by law enforcement authorities for questioning'must be adequately and effectively apprised of his rights' safeguarded by the FifthAmendment privilege against self-incrimination" (People v Dunbar, 24 NY3d 304, 313 [2014], quotingMiranda v Arizona, 384 US 436, 467 [1966]). The Miranda warnings"are an 'absolute prerequisite to interrogation' " (id. at 314, quotingMiranda, 384 US at 471). Here, the court concluded that defendant understoodhis rights based on the fact that he had been given Miranda warnings before hegave his August 16, 2010 statement. A court, however, does not " 'inquire inindividual cases whether the defendant was aware of his rights without a warningbeing given' " (id. at 314, quoting Miranda, 384 US at 468).Defendant's statements made on November 17, 2010 must therefore be suppressedbecause the Miranda warnings were not given until after defendant wasinterrogated (see generally People v Chapple, 38 NY2d 112, 115 [1975]).
The suppression of defendant's statements made on November 17, 2010 has noimpact on his conviction of the charges arising from the August 2010 incident or hisconviction of reckless endangerment in the first degree. We conclude, however, that anew trial is required for the remaining counts because the court's error in failing tosuppress the statements is not harmless. While we conclude that the evidence of guilt, inparticular the forensic evidence, is overwhelming, we cannot conclude that there is noreasonable possibility that the error might have contributed to the conviction (seePeople v Crimmins, 36 NY2d 230, 240-241 [1975]). Defendant's statements placedhim in the victim's garage as the attacker despite the victim's inability to identify him, headded incriminating details that other witnesses could not provide, and he corroborateddetails that other witnesses did provide. Moreover, the jury acquitted defendant ofseveral charges related to the November 2010 burglary and robbery incident, and thusmust not have considered the evidence so overwhelming as to prove all counts. Wefurther note that the People do not argue that any error would be harmless, and appear toagree that defendant's confession was central to their case. We therefore modify thejudgment accordingly. In view of our determination to grant a new trial on the remainingcounts, we address defendant's contention that the conviction of burglary in the firstdegree is not supported by legally sufficient evidence because there was no doorconnecting the garage to the house. That contention is not preserved for our review(see People v Gray, 86 NY2d 10, 19 [1995]), but it is without merit in any event(see People v Green, 141 AD2d 760, 761 [1988], lv denied 73 NY2d 786[1988]). Because "the garage in the present case was structurally part of a [house] whichwas used for overnight lodging . . . , it must be considered as part of adwelling" (Green, 141 AD2d at 761). Defendant also failed to preserve for ourreview his contention that the conviction of unauthorized use of a vehicle is notsupported by legally sufficient evidence (see Gray, 86 NY2d at 19), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention that he was denied effective assistance of counsel.The constitutional right to effective assistance of counsel "does not guarantee a perfecttrial, but assures the defendant a fair trial" (People v Flores, 84 NY2d 184, 187[1994]). Viewing the evidence, the law, and the circumstances of this case, in totality andas of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's contention that prosecutorial misconduct on summation deprived him of afair trial is not preserved for our review (see People v Johnson, 121 AD3d 1578, 1579 [2014]), andis without merit in any event.
Defendant failed to preserve for our review his further contention that the convictionof reckless endangerment in the first degree is not supported by legally sufficientevidence (see Gray, 86 NY2d at 19), but we exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]), and we agree with defendant. The evidence established that defendant actedrecklessly when he led the police on a high-speed chase in which he interfered withtraffic, exceeded the speed limit, and ran several red lights and stop signs before crashingthe vehicle. That evidence, without more, is insufficient to establish that defendant actedwith the requisite depraved indifference to support a conviction of recklessendangerment in the first degree (see People v Lostumbo, 107 AD3d 1395, 1396 [2013]; see generally People vMaldonado, 24 NY3d 48, 55 [2014]). We therefore further modify the judgmentby reducing the conviction of reckless endangerment in the first degree to recklessendangerment in the second degree (Penal Law § 120.20), and we remit thematter to Supreme Court for sentencing [*3]on that count(see Lostumbo, 107 AD3d at 1396).
We reject defendant's contention that the court abused its discretion in denying thatpart of his omnibus motion seeking severance. Defendant "failed to make a convincingshowing that he would be unduly and genuinely prejudiced by the joint trial of thecharges" (People v Brown, 254 AD2d 781, 782 [1998], lv denied 92NY2d 1029 [1998]). The People's proof with respect to the events in August 2010 andNovember 2010 was "straightforward and easily segregated" (People v Daymon,239 AD2d 907, 908 [1997], lv denied 94 NY2d 821 [1999]; see People v Rios, 107 AD3d1379, 1380 [2013], lv denied 22 NY3d 1158 [2014]) and, indeed, the juryacquitted defendant of some of the counts, thereby indicating that it was able to considereach count separately (see Rios, 107 AD3d at 1380).
Contrary to defendant's contentions, the court did not abuse its discretion in denyinghis request for youthful offender status (see People v Potter, 13 AD3d 1191, 1191 [2004], lvdenied 4 NY3d 889 [2005]), and the sentence imposed with respect to attemptedburglary and possession of burglar's tools is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Lindley and DeJoseph, JJ.