| People v Dunaway |
| 2015 NY Slip Op 09297 [134 AD3d 952] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwight Dunaway, Appellant. |
Lynn W.L. Fahey, New York, NY (Denise A. Corsi of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andHoward B. Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered February 7, 2011, convicting him of robbery in the first degree,kidnapping in the second degree, and assault in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant'sconviction of assault in the second degree to assault in the third degree, and vacating thesentence imposed thereon; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for further proceedings in accordanceherewith.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the defendant's conviction of robbery in the first degree was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant requested permission to present three demonstrations to the jury inorder to challenge the reliability of his identification by the complainant, who had knownthe defendant for more than 15 years. First, the defendant requested that the jury bebrought outside of the courthouse to view the complainant inside of his sport utilityvehicle to explain how the complainant had been positioned while being kidnapped. Thedefendant also requested that he be allowed to open and close his hands in thecourtroom, to discredit testimony that his hands were recognizable because some of hisfingers became stiff and locked during cold weather. Additionally, the defendantrequested permission to stand up in the courtroom so that the jury could view his heightand frame. Contrary to the defendant's contention, the Supreme Court providentlyexercised its discretion in denying these requests.
Demonstrations and tests, when relevant to a contested issue, can "play a positive andhelpful role in the ascertainment of truth" (People v Acevedo, 40 NY2d 701, 704[1976]; see People vCaballero, 34 AD3d 690, 691-692 [2006]). Although demonstrations should notlightly be rejected when they would play such a role, courts must be alert to the dangerthat, when ill-designed or not properly relevant to the point at issue, instead of beinghelpful, they may serve to mislead, confuse, divert, or otherwise prejudice the purposesof the trial (see People v Acevedo, 40 NY2d at 704). Accordingly, the trial court"must decide in the exercise of a sound discretion based on the nature of the proffered[*2]proof and the context in which it is offered, whetherthe value of the evidence outweighs its potential for prejudice" (id.; seePeople v Caballero, 34 AD3d at 691-692).
Here, the Supreme Court providently exercised its discretion in concluding that thevalue of the requested demonstrations did not outweigh their potential for prejudice ormisleading the jury. The probative value of each demonstration was limited in light ofthe extensive testimony regarding the complainant's ability to observe the defendantduring the crimes, as well as photographs of the complainant inside his sport utilityvehicle. Moreover, the conditions surrounding the proposed demonstrations were notsubstantially similar to the conditions present when the crimes were committed (seePeople v Acevedo, 40 NY2d at 704; People v Mercereau, 84 AD3d 1270, 1271 [2011];People v Caballero, 34 AD3d at 692; People v Robinson, 133 AD2d 473,473-474 [1987]; People v Hamilton, 112 AD2d 951 [1985]). Under thecircumstances of this case, the Supreme Court properly concluded that the defendantfailed to establish that the proposed demonstrations would be helpful to determine a"material factual issue" (CPL 270.50 [1]; see People v Robinson, 133 AD2d at473-474; People v Cassidy, 115 AD2d 487 [1985]; People v Hamilton,112 AD2d at 951).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]; People v Credle, 124 AD3d792, 793 [2015]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewingthe claim in its entirety (seePeople v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89AD3d at 1109). Although the defendant made a postconviction motion to vacate thejudgment pursuant to CPL 440.10, the issues raised in that motion are not properlybefore us, as he was denied leave to appeal from the denial of that motion (see People v Coleman, 125AD3d 879, 881 [2015]; People v DeLuca, 45 AD3d 777 [2007]).
The People correctly concede that the defendant's conviction of assault in the seconddegree should be reduced to assault in the third degree. On the record before us, thePeople failed to prove beyond a reasonable doubt that the complainant suffered aphysical injury that was caused by a dangerous instrument (see Penal Law§ 120.00; People v Silva, 273 AD2d 417 [2000]; People vNealy, 254 AD2d 505, 506 [1998]; cf. People v Nimmons, 95 AD3d 1360, 1360-1361 [2012]).However, the evidence was legally sufficient to support a finding that the complainantsuffered a "physical injury" (Penal Law § 10.00 [9]) as a result of numerouspunches and kicks. Accordingly, we reduce the conviction of assault in the seconddegree to assault in the third degree, and vacate the sentence imposed thereon(see CPL 470.15 [2] [a]; Penal Law § 120.00; People vSilva, 273 AD2d 417 [2000]). Although the defendant has already served themaximum sentence that could be imposed for assault in the third degree (seePenal Law § 70.15 [1]), we nevertheless remit the matter to the SupremeCourt, Kings County, for the imposition of an authorized sentence for that offense (see People v Sutherland, 102AD3d 897, 899 [2013]; People v Seymour, 77 AD3d 976, 980 [2010]; People v Harvin, 75 AD3d559, 561 [2010]). In light of this determination, we need not reach the defendant'scontention that the sentence imposed on his conviction of assault in the second degreewas excessive, or the contention raised in his pro se supplemental brief that the evidencepresented to the grand jury regarding assault in the second degree was legallyinsufficient. Further, under the circumstances of this case, there is no merit to thedefendant's contention that, upon reducing his conviction of assault in the second degree,the matter should be remitted for resentencing on his convictions of robbery in the firstdegree and kidnapping in the second degree (cf. People v Anderson, 111 AD2d124, 125 [1985]).
The defendant failed to preserve for appellate review his contention that thesentences imposed on his convictions of robbery in the first degree and kidnapping in thesecond degree improperly penalized him for exercising his right to a jury trial, "becausehe did not set forth the issue on the record at the time of sentencing" (People v Romero, 101 AD3d906, 907 [2012]; see Peoplev Garcia, 66 AD3d 699, 701 [2009]). In any event, the contention is withoutmerit. The fact that the sentence imposed after trial was greater than the sentence offeredduring plea negotiations is not, standing alone, an indication that he was punished forasserting his right to proceed to trial (see People v Martinez, 26 NY3d 196 [2015]; People vPena, 50 NY2d 400, 412 [1980]; People v Romero, 101 AD3d at 907; People v Griffin, 98 AD3d688, 690 [2012]; People vBradley, 73 AD3d 1198, 1199 [2010]). Further, a review of the record revealsno retaliation or vindictiveness against the defendant for electing to proceed to trial(see People v Griffin, 98 AD3d at 690). Moreover, the sentences imposed on thedefendant's [*3]convictions of robbery in the first degreeand kidnapping in the second degree were not excessive (see People v Suitte, 90AD2d 80 [1982]).
The defendant's contention, raised in his pro se supplemental brief, that the evidencepresented to the grand jury regarding robbery in the first degree and kidnapping in thesecond degree was legally insufficient is not reviewable on this appeal, since thedefendant's guilt of those crimes was proven beyond a reasonable doubt (see CPL210.30 [6]; People vFlowers, 95 AD3d 1233, 1234 [2012]; People v Oliver, 87 AD3d 1035 [2011]).
The defendant's contention, raised in his pro se supplemental brief, that he wasdeprived of his right to compulsory process and confrontation is unpreserved forappellate review (see CPL 470.05 [2]) and, in any event, without merit.
The defendant's remaining contentions, raised in his pro se supplemental brief, arewithout merit. Rivera, J.P., Dickerson, Miller and Maltese, JJ., concur.