| People v Smith |
| 2015 NY Slip Op 07043 [131 AD3d 1270] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rory Smith, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered March 8, 2012, convicting him of attempted murder in the seconddegree and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, assault in the third degree and attemptedmurder in the second degree relating to two altercations with the complainant. The firstoccurred on July 27, 2010, and the second, an incident during which the defendantrepeatedly fired a gun at the complainant, hitting the complainant and his motorcycle,occurred several days thereafter. Both incidents occurred in front of an apartmentbuilding in Brooklyn where the defendant resided on the first floor with the mother of hischildren, Tameka Daniels, and their children. The complainant did not live in thebuilding, but his daughter and her mother, Darlene Powell, resided on the third floor inan apartment facing the front of the building. The first incident occurred while thecomplainant was visiting his daughter at the building. The defendant engaged him in averbal altercation after Daniels accused the complainant's daughter of looking in herfirst-floor windows. The matter escalated and the complainant and the defendanteventually moved toward the sidewalk to fight. Before their interaction became physical,the defendant walked away, but then came up behind the complainant and punched himin the eye twice which, according to the complainant, broke bones near the complainant'seye. The police were called but the defendant left the scene before the police arrived.Although the responding officer completed a police report, it was never entered into theNYPD database. The complainant sustained an injury to his right eye which requiredsurgery that was scheduled for August 11, 2010.
The day before the scheduled surgery, August 10, 2010, the complainant was visitinghis daughter and Powell at their home and he encountered the defendant in front of thebuilding. They exchanged words regarding the prior incident and the defendant accusedthe complainant of stealing his son's bike. The complainant testified at trial that thedefendant told him that he hated him and that, "I got something for you, you understand.You'll bleed soon." The defendant then went inside the building and returned, and,standing on top of the stairs of the stoop, started shooting at the complainant. As thecomplainant tried to drive off on his motorcycle, the defendant descended [*2]the stairs and continued to shoot at him. The complainantsustained three gunshot wounds and his motorcycle had several bullet holes in it. Powellcalled 911, as did two neighbors who heard shots being fired at that time. The policeresponded to the scene within minutes and found 11 shell casings on a path from thefront door, down the steps, onto the sidewalk, and into the street. The defendant wasapprehended 20 days later.
After a jury trial, the defendant was convicted of attempted murder in the seconddegree and assault in the third degree. At issue in this case is whether any errors duringthe trial deprived the defendant of a fair trial. We find that they did not. Here, theevidence of the defendant's guilt was overwhelming, and any errors that were madeduring the trial were harmless, as there is no significant probability that the errorscontributed to the defendant's conviction, and they did not deprive the defendant of hisconstitutional right to a fair trial (see People v Grant, 7 NY3d 421, 424 [2006]; People vCrimmins, 36 NY2d 230, 237 [1975]).
The evidence as to the identity of the defendant as the perpetrator in both instanceswas overwhelming. The testimony of both the complainant and Powell, and theirrespective familiarity with the defendant, established the identification of the defendantas the perpetrator beyond a reasonable doubt (see People v Arce, 170 AD2d 238[1991]). As to the assault, the defendant did not deny that the incident occurred; rather,his testimony that the complainant was the aggressor and that he was defending himselfwas rejected by the jury. Immediately after the shooting incident, both the complainantand Powell identified the defendant as the perpetrator to the police and identified him attrial as the individual who shot at and who had, on the earlier date, assaulted thecomplainant.
The complainant testified at the trial that the defendant assaulted him during the firstincident and, thereafter, on August 10, he saw the defendant and spoke to him before thedefendant told the complainant he hated him and intended to kill him. The complainanttestified that, after he heard the gunshots, he realized he was bleeding, looked over hisshoulder and saw the defendant firing a gun at him.
Powell also testified that the defendant was the person who, during the first incident,assaulted the complainant, and who shot at and wounded the complainant during thesecond incident. Powell was familiar with the defendant because she had spent time withboth Daniels and the defendant in their apartment. As to the shooting incident, Powelltestified that she awoke to the sound of gunshots and looked out her window to see thedefendant firing a gun at the complainant from the front door and stoop. Powell testifiedthat she saw the defendant walk down the steps to the street while continuing to shoot atthe complainant as the complainant drove away on his motorcycle. Powell testified that,once the complainant was out of sight, she saw the defendant drive off in his light bluevan. Although Powell acknowledged on cross-examination that, on the day of theshooting, one of the two windows in her apartment that faced the street contained an airconditioner, the other had a child window guard in place, and she did not open or leanout either window, Powell's testimony that she could see the defendant shooting from thedoorway was corroborated by the path of shell casings the police found that led from thedoorway to the street.
The contention of our dissenting colleague that the evidence was not overwhelmingignores the physical evidence that corroborated the testimony of the witnesses.
Although the People correctly concede that the Supreme Court should not havedenied the defendant's request to introduce evidence from a private investigator to refutePowell's testimony that she witnessed the shooting from the third-floor windows (see People v Giles, 11 NY3d495, 499 [2008]; People v Mateo, 2 NY3d 383, 424-425 [2004]; Peoplev Primo, 96 NY2d 351, 355 [2001]; People v Scarola, 71 NY2d 769, 777[1988]), the error was harmless (see People v Crimmins, 36 NY2d at 237; People v Kavazanjian, 16AD3d 437 [2005]). Powell testified that she saw the defendant walk down the stepsto the street to continue firing at the complainant as he drove away on his motorcycle andthat, once the complainant was out of sight, the defendant drove off in his van. Theproffered testimony of the private investigator pertained only to Powell's testimony as towhether the steps were visible from the third-floor windows, not the sidewalk or street(see People v Catalanotte, 36 NY2d 192, 195 [1975]). Moreover, Powell wascross-examined about what was or was not observable from the third floor windows and,therefore, that issue already was before the jury for consideration (see People v [*3]Bruner, 222 AD2d 738, 738 [1995]). The dissentdiscounts the ability of the jurors, who had the opportunity to see and hear the defendantas well as the complainant and Powell, to evaluate the credibility of each and credit ordiscount the evidence presented (see People v Romero, 7 NY3d 633, 644 [2006]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]).
We also reject the defendant's contention, adopted by our dissenting colleague, thathe was deprived of a fair trial by errors he contends were made by the Supreme Court. Adefendant is entitled to a fair trial, not a perfect trial (see People v Parris, 4 NY3d 41, 46 [2004]; People vFlores, 84 NY2d 184, 187 [1994]; People v Claudio, 83 NY2d 76, 80 [1993],citing United States v Cronic, 466 US 648, 658 [1984]; People v Rivera,39 NY2d 519, 523 [1976]). Reversal is not warranted here since the errors did not, singlyor in combination, deprive the defendant of a fair trial (see People v Galloway, 54NY2d 396 [1981]; People vDunbar, 74 AD3d 1227, 1228 [2010]). We note that many of the alleged errorscomplained of by the defendant are not errors at all or are unpreserved for appellatereview, as the defendant failed to object to them at trial when any error could have beencorrected by the trial court (see CPL 470.05 [2]; People v Barcero, 116 AD3d1060, 1061 [2014]; Peoplev Sanabria, 110 AD3d 1012 [2013]; People v Collins, 109 AD3d 482, 482-483 [2013]; People v Louis, 99 AD3d725, 726 [2012]). For example, with respect to the admission at trial of recordings ofcertain telephone calls that the defendant made when he was at Rikers Island prior to itscase-in-chief, the prosecution provided defense counsel with a log of certain telephonecalls made by the defendant while at Rikers Island and informed the court that the Peopleintended to play two of the calls on its direct case, and that the remaining calls potentiallywould be used to impeach the defendant if he chose to testify. Despite the People'srepresentation that they intended to use numerous Rikers Island calls to impeach thedefendant if he chose to testify, no advance ruling was sought by the defendant as to anyof those calls before he took the stand.
In any event, the admission of the recordings of certain of the phone calls made bythe defendant which related to his prior criminal wrongdoing or immoral acts was noterror; the calls were properly admitted to impeach the defendant so that the jury couldproperly assess his credibility (see People v Wise, 46 NY2d 321, 326-327 [1978];People v Callender, 48AD3d 976, 977 [2008]). For example, when the defendant testified that the onlysources of his income were maintenance work, odd jobs, and music producing, heopened the door to the admission of the calls that impeached that testimony, to wit, callshe made discussing income he had received through "dropping women off at men'shouses" (see People v Maerling, 64 NY2d 134, 140-141 [1984]; People vWise, 46 NY2d at 326-327; People v Callender, 48 AD3d at 977; People v Aponte, 28 AD3d672, 672 [2006]). Similarly, the telephone call in which the defendant stated that hewas awaiting receipt of a check in another person's name, and that he had theidentification to cash the check, was properly admitted as relevant to the defendant'scredibility (see People v Wise, 46 NY2d at 324, 326; People v Bradley, 99 AD3d934, 937 [2012]; People vBreedlove, 61 AD3d 1120, 1122 [2009]). Other phone calls made by thedefendant from Rikers Island were properly admitted to show the defendant'sconsciousness of guilt (seePeople v Christiani, 96 AD3d 870, 871-872 [2012]; People v Spruill,299 AD2d 374, 375 [2002]). To the extent that the court's admission of other phone callsmade by the defendant was error, the error was harmless (see People v Grant, 7 NY3d421, 424 [2006]; People v Crimmins, 36 NY2d at 241-242; People v Kennedy, 101 AD3d1045, 1046 [2012]; People v Louis, 99 AD3d at 726; People v Duggins, 1 AD3d450, 451 [2003], affd 3 NY3d 522 [2004]).
To the extent that defense counsel did not object to the alleged errors, such inactiondid not deprive the defendant of the effective assistance of counsel (see Strickland vWashington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708,712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Moreover, therecord reveals that defense counsel otherwise provided meaningful representation(see People v Benevento, 91 NY2d at 712; People v Baldi, 54 NY2d at147).
The defendant's contention that, in imposing sentence, the Supreme Court penalizedhim for exercising his right to a jury trial, is without merit. Moreover, the sentenceimposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera,J.P., Miller and Duffy, JJ., concur.
Hinds-Radix, J., dissents, and votes to reverse the judgment appealed from, on thelaw and as a [*4]matter of discretion in the interest ofjustice, and to order a new trial, with the following memorandum: The defendant wasconvicted of attempted murder in the second degree and assault in the third degreerelating to two altercations with the complainant. The complainant and the defendantcame into contact with each other because the complainant's former girlfriend and hisdaughter lived in the same apartment building as the defendant and the defendant'sfamily.
On July 27, 2010, after an argument between the defendant's daughter and thecomplainant's daughter, the defendant punched the complainant in the right eye, head,and back. The police were called to the scene by the building superintendent andprepared a complaint report, which was never entered into the NYPD database and wasnot produced at the trial. The complainant refused an ambulance, but sought medicalattention the next day for his eye. According to the complainant, he was told that surgerywas necessary to save his right eye, and he was scheduled for surgery on August 11,2010.
On August 10, 2010, the complainant returned to the building. According to thecomplainant, as he was standing on the corner outside, the defendant drove up and wentinto the building, "came right back out," and accused the complainant of stealing hisson's bike. They discussed their altercation that had occurred on July 27. Thecomplainant claimed that he told the defendant that it was "all right, it's cool," but thedefendant replied that he hated the complainant and wanted to kill him, and walked backtoward the building. According to the complainant, he was preparing to leave on hismotorcycle when he heard shots, realized he was bleeding, looked over his shoulder, andrealized that the defendant was shooting at him from the doorway of the building.
The complainant's former girlfriend testified at the trial that she awoke to the soundof gunshots. At first she thought that the shooting was coming from the hallway becauseit was so loud, but then she realized that the sound of the shooting was coming from thewindow. She claimed that, from the window, she could see the defendant leaning out thefront door to the building, firing at the complainant. She acknowledged that there weretwo windows in her apartment that faced the street and that on the date of the shooting,one window contained an air conditioner and the other had a child window guard inplace. She did not open either window and lean out. However, she claimed that, fromboth windows, she could see the defendant shooting from the doorway from bothwindows.
The complainant left the scene on his motorcycle, which was disabled by the gunfire.The complainant called the police from a laundromat. The police, responding to a call ofshots fired, located the complainant, who was wounded in the wrist, left arm, and lowerright leg. He was taken to a hospital, where he was treated and released. The policelooked for the defendant for several days, and arrested him on August 30, 2010.
At the trial, the defendant, testifying in his own behalf, admitted that he punched thecomplainant on July 27, 2010. However, he claimed that he was not present in thevicinity at the time of the shooting, because he was having problems with his girlfriend.He claimed that the last time he was at the building was August 8, 2010, when heattended a barbecue for his son's birthday.
Thus, the defendant's participation in the fist fight was undisputed. In contrast, theevidence of the defendant's involvement in the shooting was attested to by two interestedwitnesses, the complainant and his former girlfriend, both of whom had a motive to seekretribution against the defendant for causing serious injury to the complainant's right eye.Further, the former girlfriend's testimony as to what she saw was somewhat suspect,since she acknowledged that the gunshot woke her from sleep, giving her little time tomake her observations. The physical evidence, consisting of shell casings, and thedamages inflicted by the bullets to the complainant's motorcycle and his person,corroborated that a shooting in fact occurred, but not that the defendant was theperpetrator.
Contrary to my colleagues' conclusion, the defendant's defense was not mistakenidentification, which was disproved by the fact that the parties knew each other andwould not be mistaken (cf. People v Arce, 170 AD2d 238 [1991]). Rather, thedefendant's defense was that the [*5]complainant and hisformer girlfriend implicated the defendant in the shooting for a purpose not related to hisguilt or innocence. Thus, although I agree with my colleagues that the evidence of thedefendant's involvement in the fist fight was overwhelming, I cannot agree that that wasthe case with respect to the shooting.
In my view, the multiple errors committed at the trial cannot be considered harmless.In any event, the errors deprived the defendant of a fair trial. Since the defendant'sconviction of attempted murder in the second degree and assault in the third degree wasbased upon both incidents, his conviction of both of those crimes must be reversed.
At the trial, the defense counsel sought to present the testimony of a witness who wasa private investigator and former police detective who took measurements of thedoorway of the defendant's building, made observations from the window from whichthe complainant's former girlfriend claimed she saw the shooting, and would testify thatshe could not have seen the stoop from the window. The prosecutor argued that thattestimony was not relevant, because there was testimony that the defendant was leaningout the doorway, and therefore could have been seen by the complainant's formergirlfriend from her window. The defense counsel replied that the witness would testifythat one could not see the stoop from that vantage point, and the defendant had aconstitutional right to present evidence in his defense. The defense counsel alsosuggested a hearing outside of the presence of the jury, to determine the relevancy of thewitness's testimony. The trial court denied the defendant's application to call the witness,on the ground that "that would be an improper attempt to have a layperson testify as to anopinion."
The People correctly concede that it was error by the court to preclude the defensecounsel from calling his private investigator as a witness. A defendant's right to callwitnesses in his or her behalf is a constitutional right essential to due process of law(see Chambers v Mississippi, 410 US 284, 294 [1973]; Washington vTexas, 388 US 14, 19 [1967]; People v Gilliam, 37 NY2d 722 [1975]). In theabsence of bad faith, the general rule is that where the defendant seeks to call a witness,the witness should be sworn and asked questions, to permit the court, upon properobjection, to rule upon the admissibility of the evidence offered (see People vCuevas, 67 AD2d 219 [1979]; People v Gilliam, 45 AD2d 744, 745 [1974],revd 37 NY2d 722 [1975]).
Here, the defense counsel's request for a hearing on the admissibility of the witness'stestimony was improperly denied on the ground that opinion testimony from laywitnesses is inadmissible. However, there is no categorical proscription against theadmission of opinions from lay witnesses (see People v Sanchez, 95 AD3d 241, 249 [2012],affd 21 NY3d 216 [2013]; People v Sheehy, 274 AD2d 844, 845 [2000];People v Dax, 233 AD2d 177, 178 [1996]; People v Russell, 165 AD2d327, 332 [1991], affd 79 NY2d 1024 [1992]; Swoboda v We Try Harder,128 AD2d 862, 863 [1987]). Further, the proposed testimony about the ability to see apoint from another stated vantage point constituted testimony as to the facts—andwould not necessarily include opinions (see People v Alston, 24 AD3d 391 [2005]; People vClark, 225 AD2d 472 [1996]). Since the defendant had a constitutional right to putforth a defense, contrary to the conclusion of my colleagues, the error cannot be deemedharmless (see People vHunter, 11 NY3d 1, 6-7 [2008]).
My colleagues acknowledge that the complainant's former girlfriend wascross-examined as to what she could see or could not see from those windows, whichwas an issue of credibility for the jury, who had the opportunity to see and hear thewitnesses. Unfortunately, the jury was deprived of the opportunity to see and hear all thewitnesses on this issue, depriving the defendant of his fundamental right to the dueprocess of law (see People v Robinson, 89 NY2d 648, 653 [1997]).
Contrary to my colleagues' conclusion, the parties did seek advance rulings withrespect to certain recorded telephone calls which the defendant made from prison.Unfortunately, those rulings were more honored in their breach than in theirobservance.
At a pretrial Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]), the trial court ruled that the defendant could be questioned about a priorconviction for false impersonation and the [*6]underlyingfacts thereof. The prosecutor also sought a ruling that the defendant could be questionedabout a telephone call that he made on September 7, 2010, wherein he stated that heexpected to receive a check for $1,200 which was "not fully in my name . . .it is in a male's name" and "I have the ID and all that," on the ground that the telephonecall indicated that the defendant was involved in forgery. However, the trial court ruledthat that inference to be drawn from this telephone call was too speculative, andprecluded inquiry into the matter.
Nevertheless, when the defendant took the witness stand to testify in this case, hewas cross-examined, over objection, about the telephone call he made about the check.After the defense counsel's objection was overruled, despite the court's prior ruling, theprosecutor read into the record the conversation and the defendant's statement thatalthough the check was not "fully" in his name, he had sufficient identification to cashit.
Further, the defendant was cross-examined, over objection, about a telephone callthat he made indicating his possible involvement in prostitution. However, involvementin prostitution was not one of the prior bad acts which the court ruled was a propersubject for cross-examination at the Sandoval hearing. The defendant deniedinvolvement in prostitution, but the prosecutor, over objection, persisted in that line ofinquiry. The alteration of the Sandoval ruling to permit cross-examination of thedefendant about alleged misconduct which was not authorized by the Sandovalruling and/or explicitly precluded by the Sandoval ruling after the defendant hadalready taken the stand deprived the defendant of a fair trial (see People v Fardan,82 NY2d 638, 645 [1993]; People v Fisher, 104 AD3d 868, 871 [2013]; People v Perez, 40 AD3d1131, 1132 [2007]; People v Grant, 234 AD2d 475 [1996]; People vBeniquez, 215 AD2d 678, 679 [1995]; People v Powe, 146 AD2d 718, 719[1989]).
The People contend that the defendant opened the door to cross-examination aboutpossible involvement in prostitution and forged checks when he testified that he earnedhis living as a maintenance worker, cleaning out buildings and taking out garbage, aswell as by writing music. However, the fact that the defendant claimed he was involvedin legitimate endeavors to earn a living did not open the door to testimony indicating thatthe defendant had a propensity for criminal conduct (see People v Moore, 92NY2d 823, 825 [1998]; People v Hicks, 102 AD2d 173, 183 [1984]). Nor couldthe People open the door to inadmissible testimony in their favor by asking questionsbeyond the scope of direct examination such as "Nothing else? There is no other way thatyou get money?" to which the defendant simply replied "No" (see People vMelendez, 55 NY2d 445, 453 [1982]). The prosecutor's cross-examination did notrefute the defendant's claim that he earned his living as a maintenance worker, andimproperly sought to impeach the defendant with respect to a collateral matter (seePeople v Fardan, 82 NY2d at 646; People v Wongsam, 105 AD3d 980, 981 [2013]; Peoplev Fisher, 104 AD3d at 871; People v Beaumont, 170 AD2d 513 [1991]).
Thereafter, the trial court, in the presence of the jury, reprimanded defense counselfor interrupting the flow of "legitimate cross-examination" with "spurious objections."Outside the presence of the jury, the court specifically reprimanded defense counsel forobjecting to "piercing cross-examination of your client allegedly acting as a pimp." Thus,at that juncture, it appeared that further objections by the defense counsel would havebeen futile (see People v Mezon, 80 NY2d 155 [1992]).
Thereafter, the prosecutor, this time without objection, questioned the defendantabout a telephone conversation that he had with his girlfriend wherein he stated hewanted to testify before the grand jury but had not, and that he was "pleading the fifth onthe shooting." Such testimony was highly prejudicial and in violation of the defendant'sconstitutional right against the use of his postarrest silence to impeach his credibility(see People v De George, 73 NY2d 614, 618 [1989]; People v Theodore, 113 AD3d703, 704 [2014]).
Further, in summation, the prosecutor used evidence improperly adduced oncross-examination of the defendant to urge the jury to convict the defendant based uponhis character as "a self-proclaimed hustler. You learned that while he wanted you to thinkthat the only way he makes money is by maintenance, you learned he also makes moneypimping out girls" and cashing checks in other people's names. The prosecutor also notedthat while he was living with his "babies' [*7]mama," hewas "running the streets, partying" while the mother of his children was on publicassistance. Such comments were highly prejudicial (see Gutierrez v City of NewYork, 205 AD2d 425, 426 [1994]).
Under the circumstances, the defendant was deprived of a fair trial. Accordingly, thejudgment appealed from should be reversed, and a new trial ordered.