| People v Winchell |
| 2015 NY Slip Op 05222 [129 AD3d 1309] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChauncey Winchell, Also Known as Champ Winchell,Appellant. |
John A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the County Court of Madison County(McDermott, J.), rendered April 4, 2012, upon a verdict convicting defendant of thecrimes of murder in the first degree, robbery in the first degree (two counts), robbery inthe second degree, criminal use of a firearm in the first degree, criminal possession of aweapon in the second degree (two counts), unauthorized use of a motor vehicle in thefirst degree, criminal possession of a weapon in the third degree and criminal possessionof stolen property in the fourth degree, and (2) from a judgment of said court, renderedJune 28, 2012, which resentenced defendant.
Defendant and Mark Murray (hereinafter the victim) were acquainted with oneanother and were both involved in the drug trade in central New York. The victimreceived over $85,000 in the settlement of a personal injury action in December 2007and, by May 2008, he owned a red Pontiac Firebird and carried approximately $10,000 incash on his person. According to several individuals, defendant was interested in robbinga drug dealer and indicated that he would do whatever was necessary in order to ensurethe success of that robbery. Defendant had specifically targeted the victim by January2008 and had made statements that he intended to kill the victim and take the victim'scar. Defendant called the victim several times on May 22, 2008, and their cell phonerecords indicated that they traveled together to Madison County. The victim was neverseen alive again and, shortly thereafter, defendant traveled to Tennessee in a red PontiacFirebird.
[*2] In April 2010, the victim'sskeleton was found in a shallow grave in the City of Oneida, Madison County. Anexamination of the body indicated that the victim had been shot multiple times in thehead. Defendant was thereafter charged in an indictment with numerous offensesstemming from the robbery and death of the victim. Following a jury trial, defendant wasfound guilty of murder in the first degree, robbery in the first degree (two counts),robbery in the second degree, criminal use of a firearm in the first degree, criminalpossession of a weapon in the second degree (two counts), unauthorized use of a motorvehicle in the first degree, criminal possession of a weapon in the third degree andcriminal possession of stolen property in the fourth degree. County Court sentenceddefendant to a prison term of life without the possibility of parole upon the murderconviction, with the sentences on the remaining convictions running concurrently. Afterbeing advised that the required period of postrelease supervision had not been imposedon some of the counts, County Court resentenced defendant to correct that omission.Defendant now appeals from the initial judgment of conviction and the judgment onresentencing.
We affirm. Defendant contends that the verdict was not supported by legallysufficient evidence and was against the weight of the evidence. Although his legalsufficiency argument is unpreserved due to the absence of a renewed motion to dismiss atthe close of proof, we necessarily evaluate whether all elements of the charged crimeswere proven beyond a reasonable doubt under our weight of the evidence review (see People v Pine, 126 AD3d1112, 1114 [2015]; Peoplev Robinson, 123 AD3d 1224, 1225 [2014], lv denied 25 NY3d 992[2015]). As noted above, the victim carried large amounts of cash on his person, severalindividuals indicated that defendant had targeted him for robbery, and cell phone recordsindicated that defendant and the victim were traveling together on May 22, 2008. Thevictim was traveling in his red Pontiac Firebird on that day, and the last activity on hiscell phone occurred at 3:36 p.m. in the area where his body would later be recovered.Defendant then appeared at the adjoining residences of his brother and sister around 4:30p.m. that afternoon, which his sister testified was about a 15-minute drive from the areawhere the victim was buried. At that point, defendant was driving a red Pontiac Firebirdand was behaving in a nervous manner. Defendant told his brother that he had just beenpaid $10,000 for an unspecified job, and he was observed with a gun. He further askedfor a change of pants, apparently burned the ones that he had been wearing, and disposedof items that he had placed in a plastic bag during a walk in the woods. Defendanttraveled to Tennessee shortly thereafter, where he disposed of clothing that was stored inthe Pontiac Firebird and expressed his displeasure that he had to identify himself to sellthe vehicle. Moreover, a convict who was being transported with defendant shortly afterthe victim's body was discovered testified that defendant had bragged of how he hadgotten rid of evidence that could tie him to the killing. Defendant vigorously attacked thecredibility of the People's witnesses and insinuated that others may have been motivatedto kill the victim. Even assuming that a different verdict would not have beenunreasonable, however, "viewing the evidence in a neutral light and giving deference tothe jury's credibility determinations leads us to conclude that defendant's conviction[s][were] not against the weight of the evidence" (People v Rizvi, 126 AD3d 1172, 1175 [2015]; see People v Augustine, 89AD3d 1238, 1241-1242 [2011], affd 21 NY3d 949 [2013]; People v Doyle, 48 AD3d961, 962-963 [2008], lv denied 10 NY3d 862 [2008]).
Turning to defendant's complaints regarding the jury selection process, County Courtindicated that the parties would have "about [15] or [20] minutes" for voir direquestioning, and allowed defense counsel to question prospective jurors for 25 minutes.Defense counsel nevertheless indicated that he felt "a little bit constrained" by the limit,prompting County Court to allow 30 minutes for subsequent voir dire. In our view, theselimitations constituted a proper [*3]exercise of CountyCourt's "broad discretion to restrict the scope of voir dire by counsel" (People vJean, 75 NY2d 744, 745 [1989]; see CPL 270.15 [1] [c]; People vJackson, 244 AD2d 757, 758 [1997], lv denied 91 NY2d 926 [1998]).County Court also did not abuse its discretion in requiring that armed officers escortdefendant to voir dire conferences that he elected to attend. Defendant was not restrainedand wore civilian clothing during the trial and, given the accusations of violent conductagainst him, "the proximity to a civilian prospective juror at the [conferences] warrantedcaution and an appropriate security measure" (People v Vargas, 88 NY2d 363,377 [1996]; see People vGamble, 18 NY3d 386, 396-397 [2012]). Defendant, in any case, did not objectto the procedure until after jury selection, and County Court ameliorated any prejudice byinstructing the jury that the presence of the officers was typical and that no adverseinference should be drawn against defendant because of it.
Defendant also asserts that County Court erred in excluding testimony regarding thepossibility that a third party had robbed and killed the victim. "Before permittingevidence that another individual committed the crime for which a defendant is on trial,the court is required to determine if the evidence is relevant and probative of a fact atissue in the case, and further that it is not based upon suspicion or surmise" (People v Oxley, 64 AD3d1078, 1081 [2009], lv denied 13 NY3d 941 [2010]; accord People v Molina, 79AD3d 1371, 1376 [2010], lv denied 16 NY3d 861 [2011]; see People vPrimo, 96 NY2d 351, 356-357 [2001]). County Court employed that procedure hereand, in his offer of proof, defendant indicated that two of the proposed witnesses wouldtestify that the third party had expressed an interest in robbing the victim "at some point."The remaining witness would testify that the third party "talk[ed] regularly about" thevictim after his disappearance and claimed (incorrectly) that someone had thrown hiscorpse into a body of water after a drug robbery. Inasmuch as rank speculation would berequired to infer the third party's involvement in the crimes at issue from this hearsayevidence, County Court properly balanced the minimal probative value of that evidenceagainst the strong potential for prejudice and declined to admit it (see People vGamble, 18 NY3d at 398-399; People v Schulz, 4 NY3d 521, 529 [2005]; People vPrimo, 96 NY2d at 356-357; compare People v Oxley, 64 AD3d at1082-1083).
Defendant's remaining arguments may be briefly disposed of. County Court properlyrejected his efforts to introduce expert testimony regarding the dubious credibility ofpolice informants. A typical juror is capable of discerning why an informant might lie inorder to curry favor with law enforcement officials, and expert testimony on that issuewould constitute "a serious usurpation of the jury's prerogative and responsibility" toassess credibility (People v Parks, 41 NY2d 36, 48 [1976]; see People vWilliams, 6 NY2d 18, 26-27 [1959], cert denied 361 US 920 [1959]; see also People v Williams, 20NY3d 579, 583-584 [2013]). Defendant's further claim that he was deprived of a fairtrial due to prosecutorial misconduct during the People's opening statement andsummation is largely unpreserved and, regardless, the complained-of comments were"not so substantially prejudicial as to deprive defendant of a fair trial, particularly in lightof the strength of the People's case and the overwhelming proof of defendant's guilt" (People v Head, 90 AD3d1157, 1158 [2011]; seePeople v Turcotte, 124 AD3d 1082, 1084 [2015]). Moreover, "[c]onsidering thebrutal nature of the crime, together with defendant's criminal record and apparent lack ofremorse, we find neither an abuse of discretion nor extraordinary circumstanceswarranting a reduction of the sentence" (People v Mattis, 108 AD3d 872, 876 [2013], lvdenied 22 NY3d 957 [2013]; see People v Shoemaker, 119 AD3d 1073, 1077 [2014],lv denied 25 NY3d 992 [2015]).
We have examined defendant's remaining contentions and find them to beunpersuasive.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgments areaffirmed.