| People v Brooks |
| 2016 NY Slip Op 03633 [139 AD3d 1391] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Marland D. Brooks, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Marland D. Brooks, defendant-appellant pro se.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.),rendered March 19, 2012. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, robbery in the first degree, robbery in the third degree andcriminal possession of a weapon in the third 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, inter alia, murder in the second degree (Penal Law § 125.25 [1])and robbery in the first degree (§ 160.15 [2]). The record establishes thatdefendant and his girlfriend were social visitors to the victim's home when an altercationbroke out between defendant and the victim. During the altercation, defendant inflictedtwo stab wounds to the victim's chest that ultimately caused his death. The People alsopresented evidence that defendant reached into the victim's pocket and took his wallet asdefendant and his girlfriend left the scene after the stabbing. Defendant raised thedefense of justification at trial, and he testified on his own behalf that the victim initiatedthe altercation by charging at him with a knife.
We reject defendant's contention that County Court erred in directing that he berestrained with a stun belt during trial. A trial court has "broad discretion" in decidingwhether a restraint is necessary for security reasons as long as it conducts a sufficientinquiry into the relevant facts and "makes findings on the record showing that theparticular defendant before [it] needs such a restraint" (People v Buchanan, 13 NY3d1, 4 [2009]). We conclude that the court acted within its discretion in ordering theuse of a stun belt here based on defendant's criminal history and his alleged assault of aguard while in jail awaiting trial (see People v Harvey, 100 AD3d 1451, 1451 [2012], lvdenied 21 NY3d 943 [2013]; People v Freeman, 184 AD2d 864, 864-865[1992], lv denied 80 NY2d 903 [1992]; see generally Buchanan, 13NY3d at 4). We reject defendant's further contention that he was denied a fair trial by hisgirlfriend's testimony, on direct examination by the prosecutor, that defendant had "justgotten out of jail" shortly before the crimes were committed. The court struck thattestimony in response to defendant's objection and gave curative instructions that weresufficient to alleviate any prejudice (see People v Santiago, 52 NY2d 865, 866[1981]; People v Dewitt,126 AD3d 579, 579 [2015]).
Defendant failed to preserve for our review his contention that the verdict isrepugnant inasmuch as he did not object to the verdict on that ground before the jury wasdischarged (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Spears, 125 AD3d1400, 1401 [2015], lv denied 25 NY3d 1172 [2015]). In any event, weconclude that the verdict is not repugnant because defendant's acquittal of felony murderand robbery in the first degree pursuant to Penal Law § 160.15 (1) was not"conclusive as to a necessary element" of any of the crimes of which he was convicted(People v [*2]Tucker, 55 NY2d 1, 7 [1981],rearg denied 55 NY2d 1039 [1982]; see People v Lamont, 113 AD3d 1069, 1072 [2014],affd 25 NY3d 315 [2015]). Where "there is a possible theory under which a splitverdict could be legally permissible, it cannot be repugnant" (People v Muhammad, 17NY3d 532, 540 [2011]), and it is theoretically possible for a person to commitintentional murder and robbery in the first degree pursuant to section 160.15 (2), but notfelony murder or robbery in the first degree pursuant to section 160.15 (1). For instance,a person could intentionally inflict fatal injuries on his or her victim withoutcontemporaneous intent to commit a robbery, and then forcibly steal property from thedying victim while armed with a deadly weapon—a scenario that is consistent withthe evidence and jury charge in this case.
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve his challenge to the legal sufficiency of the evidence (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Carbonaro, 134AD3d 1543, 1544 [2015]). In any event, we conclude that the evidence, whenviewed in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), is legally sufficient to establish that defendant's actions were notjustified (see People v Folger, 292 AD2d 841, 842 [2002], lv denied 98NY2d 675 [2002]), and that he forcibly stole property from the victim while the victimwas still alive (see generallyPeople v Gerena, 49 AD3d 1204, 1206 [2008], lv denied 10 NY3d 958[2008]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The challenges defendant raises on appeal to his girlfriend'scredibility were matters for the jury to determine, and we see no reason to disturb itsverdict (see People vCarson, 122 AD3d 1391, 1393 [2014], lv denied 25 NY3d 1161[2015]).
Defendant failed to object to any of the prosecutor's allegedly improper summationcomments, and thus failed to preserve for our review his contention that those commentsdeprived him of a fair trial (see CPL 470.05 [2]; People v Rumph, 93 AD3d1346, 1347 [2012], lv denied 19 NY3d 967 [2012]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We conclude that the claims of ineffective assistance ofcounsel in defendant's main brief are without merit. Defense counsel was not ineffectivein failing to object to the verdict as repugnant inasmuch as the objection would havebeen meritless (see Lamont, 113 AD3d at 1072; see generally People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]), and counsel wasnot at fault for defendant's testimony that opened the door to otherwise precludedquestioning about a prior robbery conviction. Counsel "should not have had toanticipate" that defendant would misrepresent his criminal history in response to aquestion whether he was cooperative with the police when giving a DNA sample inconnection with the instant crimes (People v Long, 307 AD2d 647, 648 [2003];see People v Lloyd, 199 AD2d 573, 574 [1993], lv denied 83 NY2d 807[1994]).
Defendant further contends that the People violated their Brady obligation byfailing to accurately disclose the terms of his girlfriend's cooperation agreement. Theagreement disclosed to the defense and testified to by defendant's girlfriend at trialprovided that she would plead guilty to robbery in the first degree and receive a 10-yearsentence of imprisonment. Defendant's girlfriend entered her plea after defendant's trial,and her plea transcript, which is attached to defendant's brief, shows that she pleadedguilty to attempted robbery in the first degree with the understanding that her sentence ofimprisonment would be "no more than" 10 years. She later received a7
[*3] Defendant contends in his pro se supplemental brief that the court erred in failingto instruct the jury to consider his girlfriend's crack cocaine intoxication at the time of theevents underlying this case in evaluating her credibility. That contention is not preservedfor our review because defendant never requested such an instruction (see generallyPeople v Lipton, 54 NY2d 340, 351 [1981]), and we conclude in any event that theproposition in question was adequately conveyed to the jury by the court's generalinstruction on witness credibility (see People v Dunston, 100 AD3d 769, 770 [2012], lvdenied 20 NY3d 1098 [2013]). As a result, we reject defendant's related pro secontention that he was deprived of effective assistance of counsel by his attorney's failureto request a jury instruction concerning his girlfriend's intoxication (see generally People v Tyler,43 AD3d 633, 634-635 [2007], lv denied 9 NY3d 1010 [2007]).Present—Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.