| People v Mitchell |
| 2015 NY Slip Op 07411 [132 AD3d 1413] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Mitchell, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Joshua Mitchell, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered June 19, 2013. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1]).Defendant was a passenger in the backseat of a Saturn that was stopped by a policeofficer who heard gunshots and observed the Saturn leaving the location from which theshots were fired. The officer saw defendant exit the Saturn immediately before theshooting. Although a man was hit by one of the gunshots and died shortly thereafter, theofficer was unaware that anyone had been injured when he stopped the Saturn. Theofficer and several backup officers removed defendant and the other people from the carand, without providing Miranda warnings, the initial officer questioned defendantabout what had occurred. Defendant told the officer that he had been in the area topurchase marihuana when someone started shooting. Defendant made similar statementsto a second officer who questioned him without providing Miranda warnings,and also spoke to a third officer who questioned him but did provide the warnings.
In the initial omnibus motion, defendant's first attorney sought, inter alia, suppressionof defendant's statements to the police or a Huntley hearing. After that hearing,County Court suppressed defendant's statements to the second officer, but declined tosuppress those made to the other officers. The court granted defendant's motion toreplace his attorney and assigned a second attorney who, shortly before trial, moved tosuppress all fruits of the stop of the Saturn on the ground that the officer who stopped itlacked probable cause to arrest defendant or reasonable suspicion to stop the vehicle. Thecourt denied the motion, concluding that it was untimely and that the allegations in themotion papers were insufficient to warrant a hearing.
Contrary to defendant's contention in his main brief, we conclude that his statementsto the first officer "were responses to threshold inquiries by the police that were 'intendedto ascertain the nature of the situation during initial investigation of a crime, rather thanto elicit evidence of a crime,' and those statements thus were not subject to suppression"(People v Naradzay, 50AD3d 1489, 1491-1492 [2008], affd 11 NY3d 460, 468 [2008]; see also People v Shelton, 111AD3d 1334, 1336-1337 [2013], lv denied 23 NY3d 1025 [2014]). Evenassuming, arguendo, that the third officer's failure to make a verbatim record ofdefendant's statement would be a basis for suppression (cf. People v Bridges, 226AD2d 471, 471 [1996]; cf.generally People v Esquerdo, 71 AD3d 1424, 1425 [2010], lv denied 14NY3d 887 [2010]), we conclude that there is no evidence supporting defendant'scontention in his main brief that there was such a failure here. Thus, the court [*2]properly denied defendant's motion to suppress hisstatements to those two officers.
Defendant further contends in his main brief that the court erred in denying hissecond suppression motion without conducting a hearing, and in his main and pro sesupplemental briefs he contends that he was denied effective assistance of counsel by hisattorneys' failures to make a timely, sufficient motion to suppress the evidence seized asthe result of the stop. He also raises additional instances of alleged ineffective assistanceof counsel in his pro se supplemental brief. We reject those contentions.
It is well settled that " '[h]earings are not automatic or generally available forthe asking by boilerplate allegations' " (People v Bryant, 8 NY3d 530, 533 [2007], quotingPeople v Mendoza, 82 NY2d 415, 422 [1993]). Here, "[t]he allegations indefendant's moving papers, when considered in the context of the detailed informationprovided to defendant, were insufficient to create a factual dispute requiring such ahearing . . . Defendant . . . did not address the specificallegations set forth in the felony complaint" and the other discovery materials providedto him (People v Springs,58 AD3d 541, 542 [2009], lv denied 12 NY3d 788 [2009]), which includedthe relevant grand jury testimony of the witness. Thus, the court properly denied themotion without conducting a hearing based on the insufficiency of the allegations and,under the circumstances of this case, any issue concerning the timeliness of the motion isof no moment. Furthermore, "we agree with the People that defendant's attorney was notineffective in failing to make a suppression motion 'that ha[d] little or no chance ofsuccess' " (People vChappell, 124 AD3d 1409, 1410 [2015], lv denied 25 NY3d 1070[2015], quoting People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Wehave considered defendant's remaining challenges to the representation provided by hisattorneys, and we conclude that they are without merit. Viewing the evidence, the lawand the circumstances of the case, in totality and as of the time of the representation, weconclude that each of defendant's attorneys provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant further contends that the conviction is not supported by legally sufficientevidence and that the verdict is contrary to the weight of the evidence, based primarilyupon his contention that there is no direct evidence that he fired the shot that killed thevictim. "It is well settled that, even in circumstantial evidence cases, the standard forappellate review of legal sufficiency issues is whether any valid line of reasoning andpermissible inferences could lead a rational person to the conclusion reached by the[factfinder] on the basis of the evidence at trial, viewed in the light most favorable to thePeople" (People v Pichardo,34 AD3d 1223, 1224 [2006], lv denied 8 NY3d 926 [2007] [internalquotation marks omitted]; seePeople v Annis, 126 AD3d 1525, 1525-1526 [2015]; see generally People vBleakley, 69 NY2d 490, 495 [1987]). In addition to the observations of the officernoted above, the People established, among other things, that one of the passengers in theSaturn saw defendant throw a black object consistent with a handgun out of the windowof the vehicle as it left the scene of the shooting, a .38 caliber handgun was found ondefendant's route of travel where the passenger said defendant threw the object, and anexpert testified that the projectile recovered from the victim's body had been fired by that.38 caliber handgun. Furthermore, the same type of ammunition was found in the trunkof the Saturn. The People also established that defendant sent a text message to a friendtwo days before this incident, seeking a weapon and .38 caliber ammunition. Weconclude that there is ample evidence in the record from which the jury could havereasonably concluded that defendant fired the shot that killed the victim. Further, uponviewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
"By failing to object to County Court's ultimate Sandoval ruling, defendantfailed to preserve for our review his present challenge to that ruling" (People v Reed, 115 AD3d1334, 1335 [2014], lv denied 23 NY3d 1024 [2014]). In any event, thecourt's Sandoval ruling does not constitute an abuse of discretion. To thecontrary, "[t]he prior convictions in question were relevant to the credibility ofdefendant" (People vTolliver, 93 AD3d 1150, 1152 [2012], lv denied 19 NY3d 968 [2012];see People v Williams, 101AD3d 1730, 1732 [2012], lv denied 21 NY3d 1021 [2013]), and the court'sruling took into account all relevant factors and struck a proper balance between theprobative value of the convictions on which it permitted the prosecutor to cross-examinedefendant and the possible prejudice to him, and precluded or limited cross-examinationwith respect to other convictions (see People v Dupleasis, 112 AD3d 1318, 1320 [2013],lv denied 22 NY3d 1138 [2014]).
[*3] Defendant's further contention in his pro se supplemental brief that the felonycomplaint is defective is not properly before us. "The felony complaint was supersededby the indictment [upon which defendant was found] guilty, and he therefore may notchallenge the felony complaint" on appeal (People v Anderson, 90 AD3d 1475, 1477 [2011], lvdenied 18 NY3d 991 [2012]; see People v Jackson, 286 AD2d 912, 912[2001], lv denied 97 NY2d 755 [2002]).
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions in his main and pro se supplemental briefs, and conclude that they arewithout merit. Present—Smith, J.P., Centra, Valentino, Whalen and DeJoseph,JJ.