| People v Cooper |
| 2015 NY Slip Op 09771 [134 AD3d 1583] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerry Cooper, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered November 2, 2012. The judgment convicted defendant, upon a juryverdict, of attempted robbery in the first degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted robbery in the first degree (Penal Law §§ 110.00,160.15 [4]) and assault in the second degree (§ 120.05 [2]). According tothe trial testimony of the victim's sister, who was in the passenger seat of the victim'svehicle when the victim was engaged in the sale of marihuana to the codefendant, thecodefendant held a gun to the victim's head. The victim's sister, who was screaming, thensaw defendant at the passenger side of the vehicle. She testified that, when she exited thevehicle, which was parked under a street light, she saw that defendant was holding aknife, and she and defendant looked directly at each other while inches apart before sheran down the street. The victim's sister saw defendant stab the victim numerous times.Defendant was arrested when the victim's sister notified the prosecutor at thecodefendant's preliminary hearing that the man who stabbed her brother was in thehall.
A police witness testified at trial that the victim's sister was unable to provide anyidentifying information when interviewed after the crimes occurred. The victim's sisteradmitted that she and the victim lied to the police regarding the location of the crime, andshe stated that she did not tell police that the victim was selling marihuana when thecrime occurred because she is the mother of four children and did not want to beconnected to a drug sale. She explained that her brother had picked her up from workwhere she had worked a 16-hour double shift and that he received a call on his cell phonewhile he was taking her home. Instead of taking her home, however, he proceeded tomeet the caller to sell marihuana.
The victim refused to testify at trial, and Supreme Court held the victim in criminalcontempt of court based upon that refusal, and sentenced him to 30 days' incarceration(see Judiciary Law § 750 [A] [3]; People v Sweat, 24 NY3d348, 353-354 [2014]). Contrary to defendant's contention, the court did not abuse itsdiscretion in refusing to give a missing witness charge with respect to the victim.Although the victim was in the courtroom, he was "still . . . unavailablewithin the meaning of the [missing witness] rule" based upon his refusal to testify(People v Savinon, 100 NY2d 192, 198 [2003]).
Contrary to defendant's contention, viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict, which is based primarily upon the testimony of a singleeyewitness, is not against the weight of the evidence. Because we conclude that adifferent verdict would not have been unreasonable, we have reviewed the record andindependently assessed the evidence (see People [*2]v Delamota, 18NY3d 107, 116-117 [2011]; People v Bleakley, 69 NY2d 490, 495 [1987]).Although the victim's sister testified that she gave the police information regarding aphysical description, the police witness testified that she was unable to do so.Nevertheless, the victim's sister "never wavered in her testimony" regarding the events orher identification of defendant (People v Calabria, 3 NY3d 80, 82 [2004]). When she sawdefendant in the hall outside of the courtroom where she had attended the codefendant'spreliminary hearing, she promptly alerted the prosecutor. The victim's sister testified that,when she exited the vehicle, she was inches from defendant in well-lit conditions, albeitbriefly and during a very stressful situation; she testified that she and defendant lookeddirectly at each other and she noted his eyes and that she was taller than defendant. Thepolice witness testified that defendant is 5 feet 5 inches tall and the victim's sistertestified that she is 5 feet 9 inches tall. The victim's sister testified on cross-examinationthat she would never forget the faces of the men who injured her brother because shethought she and her brother would be killed that night. Giving "[g]reat deference. . . to the [jury's] opportunity to view the witness[ ], hear the testimony andobserve [her] demeanor" (Bleakley, 69 NY2d at 495), we perceive no basis tosubstitute our credibility determination for that of the jury and conclude that the "jurywas justified in finding that guilt was proven beyond a reasonable doubt"(Delamota, 18 NY3d at 117).
We reject defendant's further contention that he was denied a fair trial based on thePeople's failure to provide the report from testing DNA evidence in a timely manner(see CPL 240.20 [1] [c]). The court advised the jury of the contents of the report,which excluded defendant and the codefendant as donors of the DNA and determinedthat all DNA collected came from a single male donor. Furthermore, the reports wereadmitted in evidence at defendant's request. Where, as here, the People's violation oftheir obligation did not substantially prejudice defendant, reversal is not required (seePeople v Watson, 213 AD2d 996, 997 [1995], lv denied 86 NY2d 804[1995]).
Defendant failed to preserve for our review his contention that he was denied hisstatutory right to a speedy trial inasmuch as he failed to make a motion to dismiss theindictment on the ground that the People were not ready to proceed to trial within sixmonths (see CPL 30.30 [1] [a]). In any event, the record is not sufficient for us toreview the contention. Because "the applicability of various exclusions is debatable" (People v Brunner, 16 NY3d820, 821 [2011]), and the record does not clearly support defendant's contention, welikewise reject defendant's further contention that he was denied effective assistance ofcounsel based upon defense counsel's failure to make a motion to dismiss the indictmenton that ground (cf. People vClermont, 22 NY3d 931, 932-934 [2013]). To the extent that defendant'scontention concerning ineffective assistance of counsel involves matters that are outsidethe record on appeal, they must be raised by way of a motion pursuant to CPL 440.10 (see generally People v Sweet,98 AD3d 1252, 1253 [2012], lv denied 20 NY3d 1015 [2013]).
By failing to object to certain remarks made by the prosecutor during summation,defendant failed to preserve for our review his contention that he was denied a fair trialby prosecutorial misconduct on summation (see People v Brown, 120 AD3d 1545, 1545 [2014], lvdenied 24 NY3d 1082 [2014]). In any event, we conclude that any improper remarksmade by the prosecutor did not deny defendant a fair trial (see People v Hendrix, 132AD3d 1348, 1348 [2015]). We also reject defendant's contention that he was deniedeffective assistance of counsel based on defense counsel's failure to object to the allegedinstances of prosecutorial misconduct during summation and failure to obtain an expertregarding eyewitness identification. Because the alleged improper remarks did not denydefendant a fair trial, he was not denied effective assistance of counsel based upondefense counsel's failure to object to those remarks (see id.). With respect to thefailure of defense counsel to obtain expert testimony regarding eyewitness identification,defendant has failed to demonstrate the " 'absence of strategic or other legitimateexplanations for counsel's alleged shortcoming[ ]' " (People v Stanley, 108 AD3d1129, 1130 [2013], lv denied 22 NY3d 959 [2013]). We note that there weretwo eyewitnesses, i.e., the victim and his sister, but only the victim's sister testified.Defense counsel cross-examined the victim's sister regarding her ability to viewdefendant, her state of exhaustion because she had worked 16 hours, the stress of thesituation, and her failure to provide the police with any identifying information, in orderto establish her inability to provide an accurate identification of defendant as the manwho attacked her brother with a knife. Further, the court gave the jury an expandedcharge on single-witness identification at defense counsel's request.
[*3] Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Peradotto and Carni, JJ.