| People v Clark |
| 2016 NY Slip Op 03621 [139 AD3d 1368] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJaquan Clark, Also Known as Devonte Hampton, Appellant. |
Mark D. Funk, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered December 1, 2009. The judgment convicted defendant, upon a jury verdict,of murder in the second degree (eight counts) and criminal possession of a weapon in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of eight counts of murder in the second degree (Penal Law § 125.25[1], [3]) and two counts of criminal possession of a weapon in the second degree(§ 265.03 [1] [b]; [3]). The conviction arose from the murder of four peoplein late December 2008; one victim was killed on December 23 on Skuse Street inRochester, and three victims were killed on December 26 at a home on Bernice Street inRochester. The 17-year-old defendant was arrested on an unrelated warrant on January 6,2009 and was charged with the two weapon possession counts at that time. It isundisputed that the weapon that defendant possessed on January 6, 2009 was notconnected to any of the murders. We agree with defendant that Supreme Court erred indenying that part of his omnibus motion seeking severance of the weapon possessioncounts from the murder counts because "[p]roof of defendant's commission of the[murders] was not admissible to prove defendant's guilt of criminal possession of the[weapon] or vice versa. The incidents were unrelated in time and place and completelydissimilar in nature" (People v Gadsden, 139 AD2d 925, 926 [1988]). Wenevertheless conclude that, because the evidence of the murder counts is overwhelming,there is not a significant probability that defendant would have been acquitted of any ofthe murder counts if the evidence regarding the weapon possession counts had not beenbefore the jury (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; cf.Gadsden, 139 AD2d at 926).
We reject defendant's contention that the court erred in refusing to suppressstatements he made to the police during the 26-hour period of videotaped interrogation. Itis axiomatic that the length of the interrogation period "does not, by itself, render thestatement[s] involuntary" (People v Weeks, 15 AD3d 845, 847 [2005], lv denied4 NY3d 892 [2005]). Instead, we must view " 'the totality of thecircumstances surrounding the interrogation' " (People v Knapp, 124 AD3d36, 41 [2014]). The detective ascertained defendant's date of birth, that he hadcompleted the 10th grade and was obtaining his GED, that he could read and write, thathe was not under the influence of alcohol or marijuana, and that he had never beforebeen read his Miranda rights. The detective "did not restrict himself to a merereading of the rights from a card . . . [but] [i]nstead . . .described the rights in more detail and simpler language, verifying that defendantunderstood [them]" (People v Williams, 62 NY2d 285, 288 [1984]). We concludethat the court properly determined that defendant voluntarily waived his Mirandarights (see People v Huff,133 AD3d 1223, 1224 [2015]). We further conclude that his will was not overborneby coercive police tactics (cf.People v Guilford, 21 NY3d 205, 212 [2013]; Knapp, 124 AD3d at47-48). Contrary to defendant's contention, the tactics used by the police, i.e., tellingdefendant that they thought he was a "good [*2]kid,"stating that he would feel better when he told the truth, and challenging theinconsistencies in his statement with the evidence, were not improper or unusual where,as here, there is no evidence that defendant was of subnormal intelligence or susceptibleto suggestion (cf. Knapp, 124 AD3d at 47-48; see generally People vJohnson, 52 AD3d 1286, 1287 [2008], lv denied 11 NY3d 738 [2008]).Indeed, defendant never admitted that he committed the offenses, and he changed hisversion of events regarding the murders at the Bernice Street home, admitting that he waspresent when the murders were committed by someone else, only when confronted withfingerprint evidence establishing that he was at the home. Defendant thereafter admittedthat he was present at the Skuse Street murder when he implicated another person for thatmurder. He explained that it was that other person who also had committed the murdersat the Bernice Street home, and not the three people whom he initially implicated, butwhom the police established had alibis for the time those murders were committed. Therecord establishes that defendant was provided with food, water, cigarettes, andbathroom breaks throughout the period (see Huff, 133 AD3d at 1225; People v Collins, 106 AD3d1544, 1545 [2013], lv denied 21 NY3d 1072 [2013]; cf. Guilford, 21NY3d at 210; People v Anderson, 42 NY2d 35, 40 [1977]). The record furtherestablishes that there were two breaks in the interrogation, approximately 6½ and 5 hours long, respectively, when the police were pursuing leads and thatdefendant slept during those breaks (see People v McWilliams, 48 AD3d 1266, 1267 [2008],lv denied 10 NY3d 961 [2008]). Moreover, we note that the length of theinterrogation was in large part owing to "the nature of the crime[s] and defendant'sconflicting and constantly changing stories to the police," which the police investigatedand attempted to verify (People v Steward, 256 AD2d 1147, 1147 [1998], lvdenied 93 NY2d 879 [1999]). Although defendant made four requests to make atelephone call throughout the period, it was not until the end of the period ofinterrogation that he requested to call his mother. A 17-year-old defendant is consideredan adult for the purpose of criminal prosecution (see generally People v Martin, 39 AD3d 1213, 1213[2007], lv denied 9 NY3d 878 [2007]), and defendant does not contend that thepolice engaged in " 'deception or trickery' " to isolate him from hisfamily, nor does the record support a conclusion that the police did so (People v Harvey, 70 AD3d1454, 1455 [2010], lv denied 15 NY3d 750 [2010]; cf. People vTownsend, 33 NY2d 37, 42 [1973]).
Defendant failed to preserve for our review his contentions regarding circumstancessurrounding the in-court identification of defendant by an 18-year-old witness, i.e., thatthe witness should not have been permitted to identify him and that the prosecutor andthe court engaged in misconduct (see CPL 470.05 [2]). In any event, thosecontentions lack merit. The inability of a witness to make an unequivocal pretrialidentification goes to the weight of the identification, not its admissibility (see Peoplev Parks, 257 AD2d 636, 637 [1999], affd 95 NY2d 811 [2000]). Withrespect to the allegations of misconduct, we note that, following the subject witness'sidentification of defendant as the person she saw with two of the victims on the night ofthe crimes at the home on Bernice Street, the court directed the prosecutor to speak to thewitness because she had not complied with the court's repeated instructions to speakmore loudly. Whether to permit contact between the prosecutor and a witness in themiddle of the witness's testimony "falls within the broad discretion allowed a trial courtin its management of a trial" (People v Branch, 83 NY2d 663, 667 [1994]). Wereject defendant's contention that the prosecutor's statements to the witness wereimproper. Contrary to defendant's contention, the court's efforts to clarify the witness'stestimony did not give "any impression with respect to its own view of 'the credibility ofthe testimony of [the] witness or the merits of [her identification]' " (People v Blair, 94 AD3d1403, 1404 [2012], lv denied 19 NY3d 971 [2012]).
Finally, contrary to defendant's contention, he was not deprived of effectiveassistance of counsel based upon counsel's consent to substitute an alternate juror for ajuror who, because of illness, was discharged shortly after deliberations began, ratherthan seeking a mistrial to which he would have been entitled (see CPL 270.35[1]). It is well established that "[a]llowing a defendant to decide whether deliberationsshould continue . . . provides the accused with more options. . . For example, if a defendant believes that a favorable outcome ispossible, he may prefer to consent to deliberations . . . But if the defendantbelieves that he is more likely to prevail at a retrial, the constitution ensures that thisremedy is available to a defendant as well" (People v Gajadhar, 9 NY3d 438, 447-448 [2007]). "[I]norder to prevail on a claim of ineffective assistance of counsel based on a single error oromission, a defendant must demonstrate that the error was 'so egregious and prejudicial'as to deprive defendant of a fair trial" (People v Cummings, 16 NY3d 784, 785 [2011], certdenied 565 US &mdash, 132 S Ct 203 [2011]), and that is not the case here.Although defendant correctly contends that some of the witnesses may be unavailable totestify at a second trial, the prosecution could nevertheless use the transcript of thetestimony [*3]from the first trial in its case-in-chief in aretrial (see CPL 670.10 [1]). Inasmuch as there was a cogent defense that focusedon the lack of credibility, and a motive to lie, of several of the prosecution witnesses, weconclude that there was a reasonable and legitimate basis for counsel's strategic decisionto go forward with the deliberations with jurors who saw and heard the witnesses (seegenerally People v Benevento, 91 NY2d 708, 712-713 [1998]). Finally, we rejectdefendant's contention that his consent to substitute a juror was not knowing, intelligent,and voluntary. The record establishes that "the court ascertained that defendant conferredwith his counsel prior to signing a written consent in open court in conformance withCPL 270.35 (1)" (People v Felton, 279 AD2d 331, 331 [2001], lv denied96 NY2d 799 [2001]; cf.People v Canales, 121 AD3d 14, 17 [2014]; People v Teatom, 91 AD3d 1025, 1026 [2012]). To theextent that defendant's contention " 'implicates his relationship with his trialattorney and is to be proved, if at all, by facts outside the trial record,' " it must beraised by way of a motion pursuant to CPL 440.10 (Felton, 279 AD2d at 331).Present—Centra, J.P., Carni, DeJoseph, Curran and Scudder, JJ.