| People v Harris |
| 2015 NY Slip Op 05025 [129 AD3d 1522] |
| June 12, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEric Harris, Appellant. (Appeal No. 2.) |
David J. Pajak, Alden, for defendant-appellant.
Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.),rendered March 27, 2003. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree, arson in the second degree, reckless endangerment in the firstdegree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a resentence following theentry of the judgment in appeal No. 2, which convicted him following a jury trial ofnumerous offenses, including assault in the first degree (Penal Law§ 120.10 [3]) and arson in the second degree (§ 150.15). Hewas sentenced to various determinate and indeterminate terms of incarceration, butCounty Court failed to impose periods of postrelease supervision on the determinatesentences as required by Penal Law § 70.45 (1). To correct that oversight,the court in appeal No. 1 resentenced defendant to the original terms of incarceration andimposed the requisite periods of postrelease supervision (see generally CorrectionLaw § 601-d). In appeal No. 3, defendant appeals from an order denying hisCPL 440.10 motion to vacate the judgment of conviction in appeal No. 2.
Addressing first defendant's contentions with respect to the judgment in appeal No.2, we conclude that the court properly refused to suppress statements made by defendantat the crime scene and, subsequently, at the police station. Defendant's initial statementsat the scene were made to the first trooper who arrived at the scene, in response toquestions concerning how the ongoing fire had been started and if there was anyone elseinside the residence. Those statements are admissible inasmuch as defendant was not incustody (see People vRodriguez, 111 AD3d 1333, 1333 [2013], lv denied 22 NY3d 1158[2014]; see generally People vPaulman, 5 NY3d 122, 129 [2005]), and the trooper's questions were properbased on "the 'emergency doctrine' " (People v Doll, 21 NY3d 665, 670 [2013], reargdenied 22 NY3d 1053 [2014], cert denied 572 US &mdash, 134 S Ct 1552[2014]), i.e., legitimate public safety concerns. After defendant was taken into custody,he was issued Miranda warnings by a different trooper. During the entireconversation between defendant and that trooper, defendant was shaking his head left toright. When asked if he understood the warnings, defendant responded affirmatively and,when asked if he wished to talk to the trooper, defendant remained silent.
One hour later, two investigators attempted to talk to defendant at the scene but,before they did so, one of the investigators asked defendant if he had been read theMiranda warnings, if those warnings had been read by a uniformed sergeant, ifdefendant understood those warnings and if he would agree to talk to the troopers.Defendant, who was no longer shaking his head left to right, responded affirmatively toeach question, and made several incriminating statements. Shortly thereafter, defendantwas transported to a local police station, where he was interviewed and gave threeseparate written statements. Several hours after his arrival at the police station, the firststatement was printed out. Defendant read out loud his Miranda warnings fromthe top [*2]of that first statement, and he affirmativelywaived the Miranda rights. At no time during the entire process did defendant askto speak with an attorney or ask the investigators to stop speaking with him. Further, atno point did anyone threaten defendant or make any promises to him. Throughout theinterview, the college-educated defendant was courteous and cooperative, although hehad one hand cuffed to the wall.
Defendant correctly contends that he did not explicitly waive his Mirandarights while at the crime scene or before the interview process began at the police station.It is well settled, however, "that 'an explicit verbal waiver is not required; an implicitwaiver may suffice and may be inferred from the circumstances' " (People v Jones, 120 AD3d1595, 1595 [2014]; see People v Sirno, 76 NY2d 967, 968 [1990];People v Davis, 55 NY2d 731, 733 [1981]). Here, defendant agreed to speak withinvestigators after confirming that he had been issued Miranda warnings andunderstood those warnings. We thus conclude that a knowing and voluntary waiver ofthe Miranda rights may be inferred from the circumstances (see Sirno, 76NY2d at 968; Jones, 120 AD3d at 1595).
Defendant further contends that the investigators should have repeated theMiranda warnings at the police station before any questioning began. We rejectthat contention. "[W]here, as here, 'a person in police custody has been issuedMiranda warnings and voluntarily and intelligently waives those rights, it is notnecessary to repeat the warnings prior to subsequent questioning within a reasonable timethereafter, so long as the custody [was] continuous' " (People v Johnson, 20 AD3d939, 939 [2005], lv denied 5 NY3d 853 [2005]; see People v Peterkin, 89AD3d 1455, 1455-1456 [2011], lv denied 18 NY3d 885 [2012]; People v Debo, 45 AD3d1349, 1350 [2007], lv denied 10 NY3d 809 [2008]). Here, becausedefendant was issued the Miranda warnings at the crime scene, reaffirmed hisunderstanding of those warnings at the crime scene and implicitly waived those rights atthe crime scene, there was no need to repeat the warnings before defendant wasquestioned at the station a short time later.
Defendant further contends that the court's jury instruction and the People's proof attrial materially varied from the allegations in the indictment with respect to the first countof the indictment and rendered that count of the indictment duplicitous. Following theclose of proof at trial, the court instructed the jury that it could convict defendant of thatcount, charging defendant with assault in the first degree, if it found, inter alia, thatdefendant "beat [the victim] with a piece of wood and/or his fists." The court repeatedthat instruction after a request from the jury. The indictment, however, alleged thatdefendant "beat[ ] her with his fists and a piece of wood" (emphasis added).
While defendant seemingly contends that the indictment was rendered duplicitous bythe court's instruction, defendant's actual contention is not that the proof at trialestablished more than one assault but, rather, that the court's instruction to the jury"differed significantly from the theory of the crime charged in the indictment" (Peoplev Charles, 61 NY2d 321, 326 [1984]), and thus violated his "right to be tried andconvicted of only those crimes and upon only those theories charged in the indictment"(People v Gaston, 104AD3d 1206, 1207 [2013], lv denied 22 NY3d 1156 [2014]). Such acontention must be preserved (see e.g. People v Odom, 53 AD3d 1084, 1086 [2008],lv denied 11 NY3d 792 [2008]; People v Prato, 143 AD2d 205, 206[1988], lv denied 72 NY2d 1049 [1988], reconsideration denied 73 NY2d858 [1988]), unless the change in theory concerned an essential element of the offense,i.e., "[t]he variation from the theory of prosecution found in the indictment did notmerely alter a factual incident in a way still consistent with that theory, but in factchanged the theory itself" (Charles, 61 NY2d at 329; see People v Greaves, 1 AD3d979, 980 [2003]; People v Scott, 159 AD2d 975, 976 [1990]). Inasmuch asthe court's instruction did not change an essential element of the offense, defendant'sfailure to object renders his contention unpreserved for our review.
In any event, we conclude that defendant's contention lacks merit. " 'Wherean offense may be committed by doing any one of several things, the indictment may, ina single count, group them together and charge the defendant with having committedthem all, and a conviction may be had on proof of the commission of any one of thethings, without proof of the commission of the others' " (Charles, 61NY2d at 327-328; see People vKaid, 43 AD3d 1077, 1082-1083 [2007]). "In charging the jury in thedisjunctive, rather than in the conjunctive, the court did [*3]not amend the indictment, permit the People to change thetheory of the prosecution, or render the count duplicitous" (People v Frascone,271 AD2d 333, 333 [2000]). We thus reject defendant's further contention that defensecounsel was ineffective in failing to preserve that issue for our review. "There can be nodenial of effective assistance of trial counsel arising from counsel's failure to 'make amotion or argument that has little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005]). We likewise reject defendant's contention that defense counselwas ineffective based on his failure to request an intoxication charge. Such a charge wasnot warranted because the record does not contain evidence that defendant's use ofintoxicants was " 'of such nature or quantity to support the inference that theiringestion was sufficient to affect defendant's ability to form the necessary criminalintent' " (People vSirico, 17 NY3d 744, 745 [2011], quoting People v Rodriguez, 76NY2d 918, 920 [1990]).
Defendant further contends that defense counsel was ineffective in failing to retainand call an arson expert to testify at trial. That contention lacks merit. "Defendant has notdemonstrated that such testimony was available, that it would have assisted the jury in itsdetermination or that he was prejudiced by its absence" (People v West, 118 AD3d1450, 1451 [2014], lv denied 24 NY3d 1048 [2014] [internal quotationmarks omitted]; see People v Venkatesan, 295 AD2d 635, 637 [2002], lvdenied 99 NY2d 565 [2002], cert denied 549 US 854 [2006]). We do notaddress defendant's remaining challenge to the effectiveness of counsel because it "israised for the first time in defendant's reply brief and thus is not properly before us"(People v Jones, 300 AD2d 1119, 1120 [2002], lv denied 2 NY3d 801[2004]; see People v Hall,106 AD3d 1513, 1514 [2013], lv denied 22 NY3d 956 [2013]).
We reject defendant's challenge to the severity of the resentence in appeal No. 1 and,finally, we conclude with respect to appeal No. 3 that the court properly denieddefendant's CPL 440.10 motion. In that motion, defendant alleged, inter alia, that he hadinformed defense counsel before trial that some of his signatures on the statements hadbeen forged. He thus alleged that defense counsel was ineffective in failing to retain ahandwriting expert. Attached to the motion were reports from a handwriting expert, whohad been retained by defendant's family after trial. At the hearing on the motion,however, defense counsel testified that he first learned of defendant's allegations offorgery when defendant testified at trial. "The conflicting testimony with respect towhether trial counsel had been informed about the [alleged forgery] prior to the trialpresented an issue of credibility for the hearing court[,] and we decline to disturb theresolution of that issue" (People v Castaneda, 198 AD2d 292, 293 [1993], lvdenied 83 NY2d 870 [1994]). Moreover, the testimony of defendant's proposedhandwriting expert was suspect and of little probative value inasmuch as it was internallyinconsistent, contradicted in parts by the expert's own reports, and contradicted bydefendant's own testimony. We thus conclude that defendant has failed to demonstratethat the expert testimony "would have assisted the jury in its determination or that[defendant] was prejudiced by its absence" (West, 118 AD3d at 1451 [internalquotation marks omitted]; see generally People v Hobot, 84 NY2d 1021,1023-1024 [1995]). Defendant therefore "failed to meet his burden at the hearing on themotion of 'proving by a preponderance of the evidence every fact essential to support themotion' " (People vSmith, 16 AD3d 1081, 1082 [2005], lv denied 4 NY3d 891 [2005],quoting CPL 440.30 [6]). Present—Scudder, P.J., Carni, Sconiers, Valentino andWhalen, JJ.