| People v Paige |
| 2015 NY Slip Op 09443 [134 AD3d 1048] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Zaire Paige, Appellant. |
Seymour W. James, Jr., New York, NY (Lorca Morello of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, SolomonNeubort, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGuidice, J.), rendered January 24, 2011, convicting him of murder in the second degree,assault in the first degree (three counts), assault in the second degree, and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, murder in the second degree, assault inthe first degree (three counts), assault in the second degree (four counts), and criminalpossession of a weapon in the second degree (two counts). The People alleged that thedefendant and his codefendant, Robert Crawford, acting in concert, shot and killedLethania Garcia because they believed Garcia had killed one of their friends two yearsearlier.
At the defendant's jury trial, the People presented evidence that on October 27, 2008,the defendant and Crawford located Garcia in downtown Brooklyn. The People'sevidence showed that the defendant and Crawford, each armed with a handgun, beganshooting at Garcia while he stood on the sidewalk in front of a bakery. When theshooting began, Garcia fled into a nearby hair salon and the two gunmen followed himinside. Garcia attempted to escape out a back door, but the door was jammed. Witnessesinside the hair salon testified that everyone in the salon got down on the floor to escapethe hail of bullets that flew around them. Testimony showed that one of the two gunmenstood at the door of the salon while the other gunman stood over Garcia and fired eightshots into him as he lay on the floor. Garcia sustained gunshot wounds that went throughhis brain, spinal cord, liver, and a lung. These injuries were fatal, and Garcia waspronounced dead at the scene. In addition to Garcia, the gunfire also struck numerousother individuals who had sought refuge in the hair salon and who had been crowdedonto the floor when the shooting occurred, including a woman who sustained a total of17 gunshot wounds and an off-duty police officer who was shot in the foot.
The defendant and Crawford fled the scene in a sport utility vehicle driven by anaccomplice. At the trial, the accomplice testified pursuant to a plea agreement. Histestimony [*2]provided the jury with a detailed accountof the events leading up to, and occurring after, Garcia's murder. The accomplice'stestimony was the primary evidence identifying the defendant and Crawford as theperpetrators of these crimes, although mobile phone records and cell tower data wereevidence of the defendant's presence at the location of the crime when the shootingoccurred and other evidence corroborated the accomplice's account of the incident.
During the course of the trial, the defendant was excluded from the courtroom afterhe began shouting expletives at a police witness who was testifying on behalf of thePeople. The defendant repeatedly accused the police witness of "lying" before courtofficers removed him. This outburst occurred in the presence of the jury. After the courtissued a curative instruction and warned the jurors not to discuss the case or begindeliberations until they were so charged, the jurors were excused for the day.
The court later learned that members of the jury had a discussion in the jury roomregarding the credibility of police officers following the defendant's outburst. Onemember of the jury had reportedly stated that "she hated police officers" and that "noneof them [could] be trusted." This juror—juror number eight—reportedlystated that she hid her negative views during jury selection because she "didn't want tobring any attention to herself." The court proceeded to individually interview each of thejurors and each of the alternate jurors in the presence of the prosecutor and defensecounsel, questioning them about the contents of the discussion that had occurred in thejury room and whether they could remain fair and impartial. At the conclusion of thisinquiry, the court dismissed two jurors—juror number eight and juror numbernine. The court determined that juror number eight was grossly unqualified to serve andthat she had engaged in substantial misconduct. The court dismissed juror number nineon the ground that she had engaged in substantial misconduct. The discharged jurorswere replaced with alternate jurors and the trial resumed.
At the conclusion of the evidence and after summations, the jury was charged andretired to deliberate. The jury returned a verdict finding the defendant guilty of murder inthe second degree, assault in the first degree (three counts), assault in the second degree,and criminal possession of a weapon in the second degree. The defendant appeared atsentencing and was permitted to address the court, at which time he maintained hisinnocence and directed obscenities at the Trial Justice. Noting that the defendant had"turned the streets of Brooklyn into a war zone" and had callously "executed" Garcia and"grievously wounded . . . additional innocent bystanders," the court imposeda sentence of imprisonment. We affirm.
On appeal, the defendant contends that the evidence was legally insufficient tosupport the convictions since they were based solely on the uncorroborated testimony ofthe accomplice in violation of Criminal Procedure Law § 60.22 (1). Thiscontention is without merit.
Criminal Procedure Law § 60.22 (1) provides that "[a] defendant maynot be convicted of any offense upon the testimony of an accomplice unsupported bycorroborative evidence tending to connect the defendant with the commission of suchoffense" (CPL 60.22 [1]). "[T]he role of the additional evidence is only to connect thedefendant with the commission of the crime, not to prove that he committed it" (People v Reome, 15 NY3d188, 192 [2010] [internal quotation marks omitted]; see People v Sage, 23 NY3d16, 27 [2014]; People v Breland, 83 NY2d 286, 294 [1994]). The statutorycorroboration requirement may be satisfied by evidence that " 'tends to connectthe defendant with the commission of the crime in such a way as may reasonably satisfythe jury that the accomplice is telling the truth' " (People v Reome, 15NY3d at 192, quoting People v Dixon, 231 NY 111, 116 [1921]; see People vSage, 23 NY3d at 27).
Here, contrary to the defendant's assertion, there was ample corroborative evidencetending to connect the defendant to these crimes. Numerous eyewitnesses testified thattwo shooters had been involved in the incident. One eyewitness observed the twoshooters enter a sport utility vehicle after the shooting, and that witness wrote down thelicense plate number of the vehicle. The license plate number of the sport utility vehicleled police to the accomplice. In addition, although none of the eyewitnesses to theshooting identified the defendant as the shooter, the phone records [*3]and testimony from employees of the cell phone providersserved to establish the defendant's presence at the scene when the crime was committed(see CPL 60.22 [1]; People v Vantassel, 95 AD3d 907, 907-908 [2012]; People v Sudhan, 83 AD3d874, 874 [2011]). The accomplice's assertion that the defendant killed Garciabecause the defendant believed that Garcia had killed the defendant's friend two yearsearlier was corroborated by Kim Tillson, the mother of the defendant's deceased friend,who testified that the defendant called her on the date of the shooting to wish her happybirthday and to inform her that he "took care of that." Accordingly, the defendant'scontention that the evidence was legally insufficient to support his convictions is withoutmerit. Moreover, upon the exercise of our factual review power, we are satisfied that theverdict of guilt was not against the weight of the evidence (see CPL 470.15[5]).
The defendant also contends that he was deprived of his right to be present at his trialwhen the court permanently excluded him from the courtroom following his outburst.This contention is without merit.
A defendant's right to be present at a criminal trial is encompassed within theconfrontation clauses of the state and federal constitutions (see NY Const, art I,§ 6; US Const 6th Amend). "Of course the right to be present may, as ageneral matter, be waived under both Constitutions" (People v Parker, 57 NY2d136, 139 [1982]). "[A] waiver of the right to be present at a criminal trial may be inferredfrom certain conduct engaged in by the defendant after the trial has commenced"(id. at 139; see People v Johnson, 37 NY2d 778, 779 [1975]; People vEpps, 37 NY2d 343, 350-351 [1975]). "[A] defendant who engages in disruptivebehavior during a trial may be held to have, in effect, waived his [or her] right to bepresent" (People v Connor, 137 AD2d 546, 549 [1988]; see Illinois vAllen, 397 US 337, 342 [1970]; People v Byrnes, 33 NY2d 343, 349[1974]).
In this case, the defendant's actions throughout the course of the trial constituteddisruptive conduct warranting the defendant's exclusion from the courtroom (seePeople v Byrnes, 33 NY2d at 349-350; People v Palermo, 32 NY2d 222, 225[1973]; People v Baxter,102 AD3d 805, 805 [2013]; People v Garcia, 57 AD3d 918, 918-919 [2008]; People v Felix, 2 AD3d535, 536 [2003]). The record reflects that, even prior to the defendant's outburst, hehad engaged in a pattern of behavior that delayed and frustrated court proceedingsnotwithstanding the fact that he had been repeatedly warned by the trial court that if hedid not desist in such conduct, he would be barred from attending the remainder of thetrial. To the extent that the defendant disputes the trial court's characterization of theseevents with reference to matter dehors the record, such contentions are not properlybefore this Court (see generallyPeople v Cass, 18 NY3d 553, 556 [2012]). In sum, the record adequatelydemonstrates that the defendant, in persisting in his pattern of behavior despite the trialcourt's admonitions, knowingly, voluntarily, and intelligently waived his right to bepresent at the remainder of his trial (see People v Johnson, 37 NY2d at 779;People v Epps, 37 NY2d at 350-351; People v Byrnes, 33 NY2d at349-350; People v Palermo, 32 NY2d at 225; see also People v Baxter,102 AD3d at 805; People v Garcia, 57 AD3d at 918-919).
Furthermore, under the circumstances of this case, the trial court did notimprovidently exercise its discretion in refusing defense counsel's request to readmit thedefendant to the courtroom (see Illinois v Allen, 397 US at 342-343; People vEpps, 37 NY2d at 351; People v Menner, 2 AD3d 650, 651 [2003]). Although acourt should strive, "once the goal of preserving order and decorum is achieved, [tomake] every reasonable effort . . . to minimize the possibility of prejudice"to a defendant (People v Palermo, 32 NY2d at 226), the record in this case doesnot support the defendant's contention that, after he was removed from the courtroom forhis profanity-ridden outburst, he was willing to "conduct himself consistently with thedecorum and respect inherent in the concept of courts and judicial proceedings"(Illinois v Allen, 397 US at 343; see People v Menner, 2 AD3d at 651).Furthermore, while a trial court that readily possesses the means to do so shouldgenerally permit a defendant who has been excluded from the courtroom to observe theproceedings from a remote location in order to minimize the possibly of prejudice(see generally People v Palermo, 32 NY2d at 226; People v Sanchez, 7 AD3d645, 646 [2004]; People v Harris, 115 AD2d 619, 620 [1985]), we concludethat under the particular circumstances of this case, the court did not improvidentlyexercise its discretion in declining defense counsel's request to permit the defendant toview the proceedings from a remote location (cf. People v Sanchez, 7 AD3d at646; People v [*4]Harris, 115 AD2d at 620).
The defendant next contends that the trial court erred in dismissing juror numbereight and juror number nine on the ground that they were grossly unqualified and/or hadengaged in substantial misconduct. This contention is partially unpreserved for appellatereview and, in any event, without merit.
"The constitutional right of a criminal defendant to a fair trial includes both the rightto be tried by the jury in whose selection the defendant himself has participated, and theright to an impartial jury" (People v Rodriguez, 71 NY2d 214, 218 [1988];see NY Const, art I, §§ 6, 2; US Const 6th, 14th Amends). Inorder to safeguard these rights, the Legislature has supplied, inter alia, a mechanism toallow for a juror to be dismissed during the trial or during deliberations (see CPL270.35; People v Rodriguez, 71 NY2d at 218). Accordingly, "[i]f at any timeafter the trial jury has been sworn and before the rendition of its verdict . . .the court finds, from facts unknown at the time of the selection of the jury, that a juror isgrossly unqualified to serve in the case or has engaged in misconduct of a substantialnature . . . the court must discharge such juror" (CPL 270.35 [1][emphasis added]; see People v Buford, 69 NY2d 290, 298 [1987]).
Here, the defendant contends that the trial court erred in concluding that jurornumber eight was grossly unqualified in light of her unequivocal assurance that shecould remain fair and impartial. The Court of Appeals has held that a juror is grosslyunqualified "only when it becomes obvious that [the] particular juror possesses a state ofmind which would prevent the rendering of an impartial verdict" (People vBuford, 69 NY2d at 298 [internal quotation marks omitted]; see People vRodriguez, 71 NY2d at 219). In order to determine whether this standard has beenmet, "[a] trial court should first conduct an in camera proceeding in the presence of theattorneys and defendant" (People v Rodriguez, 71 NY2d at 219). This proceedingshould be a "probing and tactful inquiry" into the "unique facts" of each case, including acareful consideration of the juror's "answers and demeanor" (People v Buford, 69NY2d at 299; see People v Rodriguez, 71 NY2d at 219). "The Trial Judgegenerally is accorded latitude in making the findings necessary to determine whether ajuror is grossly unqualified under CPL 270.35, because that Judge is in the best positionto assess partiality in an allegedly biased juror" (People v Rodriguez, 71 NY2d at219; see People v Guy, 93AD3d 877, 878 [2012]; People v Rosado, 53 AD3d 455, 457 [2008]; People vFranklin, 7 AD3d 966, 967 [2004]; People v Burse, 299 AD2d 911, 912[2002]; People v Bamfield, 208 AD2d 853, 854 [1994]).
In this case, the trial court properly conducted an in camera proceeding to inquireinto the nature of the statements that juror number eight had made to other jurorsregarding her views on law enforcement personnel. During this inquiry, juror numbereight admitted that she had stated, during a discussion with other jurors, that "cops arecrooked." Although juror number eight later asserted that she had only said that "somecops are crooked" and represented that she could be fair and impartial despite her"personal opinion" as to law enforcement personnel, the trial court was not required toaccept these representations at face value (see People v Rojas, 15 AD3d 211, 212 [2005]; People vAybinder, 215 AD2d 181, 181 [1995]; People v Cannady, 138 AD2d 616,616-617 [1988]; see also Peoplev Hicks, 6 NY3d 737, 739 [2005]; Mikel v Zon, 2007 WL 9225080,*18, 2007 US Dist LEXIS 103479, *50 [WD NY, Mar. 5, 2007, No. 04-CV-6448(CJS/VEB)]). Contrary to the defendant's contention, the court's decision to reject therepresentations of juror number eight as to her partiality was not based on impermissiblespeculation; it was supported by the record (cf. People v Telehany, 302 AD2d927, 928 [2003]; People v Velasquez, 167 AD2d 364, 365 [1990]; People vGarcia, 153 AD2d 951, 953 [1989]). Indeed, two of the alternate jurors who wereinterviewed by the trial court controverted the account of the discussion given by jurornumber eight and indicated that, in the jury room, she had expressed deep hostilityagainst law enforcement personnel. Under the circumstances, we decline to disturb thetrial court's credibility determination with respect to juror number eight (cf. People vJohnson, 245 AD2d 305, 305 [1997]). In light of this factual determination, weconclude that the trial court properly dismissed juror number eight inasmuch as therecord established that she was "grossly unqualified to serve in the case" (CPL 270.35[1]; see People v Rojas, 15 AD3d at 212; People v Aybinder, 215 AD2dat 181).
The defendant further contends that the trial court erred in dismissing juror number[*5]nine on the ground that she had engaged insubstantial misconduct. However, the defendant did not take this position during the trial.Rather, the defendant's attorney merely argued that juror number nine was not grosslyunqualified due to her alleged bias against police officers. Even after the trial courtdetermined, on the record, that juror number nine had engaged in substantial misconduct,defense counsel failed to take exception to the court's ruling on this ground. Accordingly,the defendant's contention that the trial court erred in determining that juror number ninehad engaged in substantial misconduct is unpreserved for appellate review (seeCPL 470.05 [2]; People v Jenkins, 257 AD2d 666 [1999]; see also Peoplev Hicks, 6 NY3d at 739; People v Gonzalez, 246 AD2d 554, 554[1998]).
In any event, the record supports the trial court's conclusion that juror number ninehad engaged in misconduct of a substantial nature warranting her dismissal pursuant toCPL 270.35 (1). When she was questioned by the court during its in camera inquiry,juror number nine indicated that she had discussed the trustworthiness of police officerswith other jury members, telling them that "some [police officers] do things that are notright," and related instances in which she had observed police misconduct. In response toa question about what precipitated her remarks, juror number nine indicated that thesediscussions "pertain[ed] to what took place [in the courtroom]" on the previous Friday,the day on which the defendant had disrupted court proceedings by accusing a policewitness of lying. The record demonstrates that juror number nine engaged in thesediscussions despite the fact that the trial court had repeatedly admonished the jury "[y]oumay not discuss any subject connected with this case among yourselves," and hadrepeated these warnings just prior to discharging the jury in the wake of the defendant'soutburst. Although juror number nine acknowledged receiving these instructions, sherefused to acknowledge that she had violated them. In addition, the record reflects thatshe failed to adequately respond to questions during jury selection about her pastexperiences with law enforcement personnel despite the fact that the prospective jurorswere asked whether they had any "personal experiences" that would "impact" how theywould evaluate police testimony, and this and similar questions were specificallyincorporated into the questions directed at juror number nine. In light of the foregoing,we decline to disturb the trial court's finding that juror number nine improperly withheldinformation from the court and the lawyers during voir dire and violated the court'srepeated instructions not to discuss the case prior to formal deliberation. In light of thisfactual determination, we conclude that the trial court properly dismissed juror numbernine inasmuch as the record demonstrated that she had "engaged in misconduct of asubstantial nature" (CPL 270.35 [1]; see People v Cannady, 138 AD2d at616-617; see also People vHavner, 19 AD3d 508, 508 [2005]; People v Rojas, 15 AD3d at 212;People v Tamayo, 256 AD2d 98, 99 [1998]; People v Radtke, 219 AD2d739, 739-740 [1995]; People v Johnson, 217 AD2d 667, 668 [1995]; People vBerrios, 177 AD2d 493, 494 [1991]; People v Fox, 172 AD2d 218[1991]).
The defendant also contends that he was denied his right to a public trial when thetrial court closed the courtroom for the limited purpose of determining the extent towhich defense counsel had "opened the door" to certain evidence. However, thedefendant waived this claim by explicitly consenting to the closure (see People v Bens, 23 AD3d489 [2005]; People v Sevencan, 258 AD2d 485 [1999]). The defendant'sfurther contention that his limited waiver of this right was not knowing, voluntary, andintelligent is without merit (see People v Moody, 300 AD2d 510, 510-511[2002]; People v Roque, 291 AD2d 417, 417 [2002]).
There is no merit to the defendant's contentions regarding the admission of evidenceof the defendant's gang membership, as the evidence was relevant to the issue of thedefendant's motive, was inextricably interwoven into the narrative, and explained therelationships between the parties (see People v Bruno, 127 AD3d 986 [2015]; People v Harris, 117 AD3d847, 855 [2014], affd 26 NY3d 1 [2015]; People v Borrero, 79 AD3d767, 768 [2010]; People vJordan, 74 AD3d 986, 986 [2010]).
However, the trial court should not have permitted the elicitation of evidence that thedefendant had a handcuff key in his possession at the time of his arrest, nor allowedPolice Officer Rashan LaCoste to testify that when he arrested the defendant on aprevious occasion for crimes unrelated to the crimes charged in this case, various gunsand ammunition were recovered from the residence where the defendant was located atthe time of that arrest. However, these errors were harmless, as the proof of thedefendant's guilt, without reference to the error, is overwhelming, and there is nosignificant probability that the jury would have acquitted the defendant had it not been[*6]for the error (see People v Gillyard, 13 NY3d 351, 356 [2009];People v Crimmins, 36 NY2d 230, 241-242 [1975]). Similarly, any prejudicecaused by the court's refusal to provide a curative instruction after permitting the Peopleto add a witness after the parties' opening statements was not so great as to deprive thedefendant of a fair trial.
Contrary to the defendant's further contention, the court's interpretation of a juryrequest for a readback was reasonable, and its response meaningful (see CPL310.30; People v Grant, 127AD3d 990, 991 [2015]; People v Clark, 108 AD3d 797 [2013]; People v Briggs, 61 AD3d770, 771 [2009]; People v Jones, 297 AD2d 256, 257 [2002]).
Under the circumstances, the Supreme Court did not improvidently exercise itsdiscretion in sentencing the defendant to the maximum aggregate sentence permitted(see People v Suitte, 90 AD2d 80 [1982]). Contrary to the defendant's furthercontention, the sentencing limitations provided in Penal Law § 70.30 (1) (e)do not apply where the two or more crimes include, as here, a class A felony (seePenal Law § 70.30 [1] [e] [iii]; Matter of Roballo v Smith, 63NY2d 485 [1984]). Rivera, J.P., Balkin, Miller and Hinds-Radix, JJ., concur.