| People v Wilkerson |
| 2016 NY Slip Op 04465 [140 AD3d 1297] |
| June 9, 2016 |
| Appellate Division, Third Department |
[*1](June 9, 2016)
| The People of the State of New York, Respondent, vMali Wilkerson, Also Known as New, Appellant. |
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered May 17, 2013, upon a verdict convicting defendant of the crimesof robbery in the second degree, assault in the second degree, assault in the third degreeand endangering the welfare of a child.
Defendant and the victim married in 2007 and have three children in common. Onthe evening of April 21, 2012, defendant and the victim had a disagreement, promptingthe victim to leave their shared residence and spend the night in a local hotel. At somepoint during the night, defendant ascertained the victim's whereabouts, went to the hoteland retrieved the family vehicle, leaving the victim without transportation. As a result,when the victim awoke on the morning of April 22, 2012, she called her friend, DanielleSchoonmaker, for a ride. Schoonmaker picked up the victim, who was reluctant to returnhome, and drove her to Schoonmaker's residence. After overhearing a telephoneconversation between the victim and defendant, Schoonmaker offered—in aneffort to give everyone involved "some time to cool off"—to drive to the homethat the victim shared with defendant and pick up their children. When Schoonmakerarrived at the victim's home, defendant's father was present, and he persuaded her toleave the children with him. Schoonmaker then returned to her residence, where she hadleft her three children—then 2, 4 and 11 years old—with the victim.
In the interim, defendant and his brother arrived at Schoonmaker's home looking forthe [*2]victim. After defendant and his brother enteredthe residence without knocking, defendant's brother turned up the volume on thetelevision and told Schoonmaker's three children, who were sitting in the living room,not to go into the bathroom. Defendant then proceeded to the bathroom, where he foundthe victim sitting on the toilet. Defendant struck the victim's face with his fist, knockingher off of the toilet and into the tub; as the victim fell, she grabbed the showercurtain—pulling it down and breaking the shower curtain rod into two pieces.According to the victim, she and defendant each grabbed a portion of the shower rod andbegan striking one another.[FN1] This altercation continued untildefendant's brother intervened and helped the victim out of the tub. The victim thenwalked outside and defendant soon followed, carrying the victim'sbelongings—including her purse. When the victim attempted to retrieve her purse,defendant "smashed it back" and struck the victim in the head with the purse, resulting intwo lacerations that eventually required stapling in order to close the wounds.Schoonmaker arrived in time to witness this portion of the assault and testified thatdefendant hit the victim "once or twice" while he "was trying to get the purse."Defendant and his brother then left the premises with the victim's purse and cellphone.
As a result of this incident, defendant was indicted and charged with burglary in thefirst degree, robbery in the second degree, assault in the second degree, assault in thethird degree and endangering the welfare of a child. The matter proceeded to trial and, atthe close of the People's proof, County Court dismissed the burglary count. Theremaining counts, along with the lesser included offense of robbery in the third degree,were submitted to the jury, and the jury thereafter convicted defendant ascharged.[FN2]Defendant's subsequent motion to set aside the verdict was denied, and County Courtthereafter sentenced defendant, as a second felony offender, to an aggregate prison termof five years followed by five years of postrelease supervision. This appeal by defendantensued.[FN3]
We affirm. Initially, we reject defendant's assertion that he was deprived of his rightto testify before the grand jury. Where, as here, "a defendant . . . has beenarraigned in a local criminal court upon a currently undisposed of felony complaintcharging an offense which is a subject of the prospective or pending grand juryproceeding[,] . . . the district attorney must notify the defendant or his [orher] attorney of the prospective or pending grand jury proceeding and accord thedefendant a reasonable time to exercise his [or her] right to appear as a witness therein"(CPL 190.50 [5] [a]; see Peoplev Lanier, 130 AD3d 1310, 1311 [2015], lv denied 26 NY3d 1009[2015]; People v Ellison,119 AD3d 602, 604 [2014]; People v Lyons, 40 AD3d [*3]1121, 1121 [2007], lv denied 9 NY3d 878 [2007]).A defendant, in turn, "has a right to appear before such grand jury as a witness in his [orher] own behalf if, prior to the filing of any indictment . . ., he [or she]serves upon the district attorney of the county a written notice making such request andstating an address to which communications may be sent" (CPL 190.50 [5] [a]; see People v Sain, 111 AD3d964, 965 [2013], lv denied 23 NY3d 967 [2014]; People v Kirk, 96 AD3d1354, 1358-1359 [2012], lv denied 20 NY3d 1012 [2013]).
The record reflects that defendant was arraigned on a felony complaint in NiskayunaTown Court on April 25, 2012. An audio recording of that proceeding reveals thatdefendant had completed an application for assigned counsel, and the court adviseddefendant that, if he qualified, the Schenectady County Conflict Defender's Office wouldbe assigned to represent him. Prior to the conclusion of that proceeding, the Peopleserved defendant with notice that the matter was scheduled to be presented to a grandjury on April 27, 2012 at 1:00 p.m. The People also indicated that such notice would besent to the Conflict Defender's Office the following morning, as well as to a specificattorney therein, and the record contains an email—sent at 10:51 a.m. on April 26,2012—confirming receipt (via fax) of the CPL 190.50 notice by the ConflictDefender's Office. According to the People, defendant was indicted the followingday—April 27, 2012.
There is no question that defendant was served with notice of presentment to thegrand jury on April 25, 2012 and that the Conflict Defender's Office, whichpresumptively was assigned to represent defendant, received such notice the followingmorning—more than 24 hours before the scheduled presentation of the matter tothe grand jury on April 27, 2012 at 1:00 p.m. There also is no question that the Peoplenever received written notice of defendant's intention to testify before the grand jury asrequired by CPL 190.50 (5) (a). To the extent that defendant now contends that he orallyadvised Town Court of his desire to testify before the grand jury, two points are worthnoting. First, unless the People have waived the statutory written notice requirement(see People v Young, 138 AD2d 764, 765 [1988], lv denied 72 NY2d868 [1988]), oral notice of a defendant's desire to testify is insufficient (see People vColantonio, 277 AD2d 498, 499 [2000], lv denied 96 NY2d 781 [2001];People v Hunter, 169 AD2d 538, 538 [1991], lvs denied 77 NY2d 907[1991]) in all but the rarest of circumstances (see People v Gini, 72 AD2d 752,753 [1979]). No extenuating circumstances exist here, and nothing in the record suggeststhat the People waived the statutory written notice requirement. Further, the audiorecording of the proceeding in Town Court fails to substantiate defendant's claim that hegave oral notice of his desire to appear before the grand jury. Hence, upon reviewing therecord, we are satisfied that the People provided reasonable notice to both defendant andthe Conflict Defender's Office—following which defendant failed to timely notifythe People in writing of his intention to appear before the grand jury (see People v Tole, 94 AD3d1334, 1335 [2012], lv denied 19 NY3d 968 [2012]; People v Hernandez, 42 AD3d657, 662 [2007]; compare People v Ellison, 119 AD3d at 604).
Defendant's related claim—that he was not afforded sufficient time to conferwith counsel in this regard—also is lacking in merit. Both defendant and theConflict Defender's Office were on notice of the impending grand jury presentation, andthe fact that counsel and defendant were unable to confer prior to the grand juryreturning an indictment neither rendered the People's notice unreasonable (comparePeople v Tole, 94 AD3d at 1334-1335, and People v Ballard, 13 AD3d 670, 671 [2004], lvdenied 4 NY3d 796 [2005], with People v Chappelle, 121 AD3d 1166, 1167-1168[2014], lv denied 24 NY3d 1118 [2015]) nor amounted to the denial of theeffective assistance of counsel (cf. People v Sain, 111 AD3d at 965).Accordingly, County Court properly denied defendant's motion to dismiss theindictment.
[*4] Defendant next contendsthat his convictions are not supported by legally sufficient evidence and, further, areagainst the weight of the evidence. Although defendant's legal sufficiency argument ispreserved only with respect to his convictions of robbery in the second degree and assaultin the second degree, "our weight of the evidence review necessarily involves anevaluation of whether all elements of the charged crime[s] were proven beyond areasonable doubt at trial" (People v Jones, 136 AD3d 1153, 1156 [2016] [internalquotation marks and citations omitted], lv denied 27 NY3d 1000 [2016]; see People v Speed, 134 AD3d1235, 1235-1236 [2015]). Insofar as is relevant here, "[a] person is guilty of robberyin the second degree when he [or she] forcibly steals property and when . . .[i]n the course of the commission of the crime or of immediate flight therefrom, he [orshe] or another participant . . . [c]auses physical injury to any person who isnot a participant in the crime" (Penal Law § 160.10 [2] [a]; see People v Gordon, 23 NY3d643, 649 [2014]). "A person commits 'forcible stealing' when, during thecommission of a larceny, such individual 'uses or threatens the immediate use of physicalforce upon another person for the purpose of . . . preventing or overcomingresistance to the taking of the property or to the retention thereof immediately after thetaking' " (People v Gordon, 23 NY3d at 649-650, quoting Penal Law§ 160.00 [1] [brackets and footnote omitted]). Additionally, "[a] personsteals property and commits larceny when, with intent to deprive another of property orto appropriate the same to himself [or herself] or to a third person, he [or she] wrongfullytakes, obtains or withholds such property from an owner thereof" (Penal Law§ 155.05 [1]; seePeople v Bigness, 28 AD3d 949, 950 [2006], lv denied 7 NY3d 810[2006]). Finally, the definition of "physical injury" includes, insofar as is relevant here,"substantial pain" (Penal Law § 10.00 [9]).
The count charging defendant with robbery in the second degree pertained to theforcible taking of the victim's purse. As noted previously, the victim testified that,following the initial assault in the bathroom, she walked outside and observed defendantemerge from Schoonmaker's residence with, among other things, her purse. When thevictim attempted to retrieve her purse, defendant "smashed it back" and struck her in thehead with the purse. Defendant then left the premises with the victim's purse. Thevictim's testimony on this point was corroborated by Schoonmaker, who testified thatdefendant hit the victim "once or twice" while he "was trying to get the purse."According to the physician's assistant who treated the victim following this incident, thevictim sustained, among other injuries, two head lacerations that required stapling inorder to close the wounds—one of which was described as having "a moderategape." The physician's assistant further testified that, when asked to describe her level ofpain, with "zero being no pain . . . [and] 10 being the worst pain that youcan have," the victim reported a pain level of 10 with respect to her head injuries. In lightof such testimony, and inasmuch as "intent to commit a robbery may be inferred fromdefendant's conduct and the surrounding circumstances" (People v Chaplin, 134 AD3d1148, 1151 [2015]), we find that the jury's verdict convicting defendant of robberyin the second degree is supported by legally sufficient evidence and is in accord with theweight of the evidence.[FN4]
[*5] We next turn to defendant's conviction of assault in thesecond degree, which stemmed from the injuries received by the victim during the purseincident. Insofar as is relevant here, "[a] person is guilty of assault in the second degreewhen . . . [i]n the course of and in furtherance of the commission orattempted commission of a felony, . . . or of immediate flight therefrom, he,[she,] or another participant[,] if there be any, causes physical injury to a person otherthan one of the participants" (Penal Law § 120.05 [6]). Defendant's primarychallenge to his conviction of assault in the second degree is the alleged absence of anunderlying felony. However, inasmuch as we have upheld defendant's conviction ofrobbery in the second degree, his argument on this point necessarily fails. Moreover, asnoted previously, there is no question that the victim sustained physical injuries as aresult of this incident. Accordingly, we are satisfied that defendant's conviction of assaultin the second degree is supported by legally sufficient evidence and is in accord with theweight of the evidence.
As for the remaining offenses, a person is guilty of assault in the third degreewhen—as applied to the facts before us—such person, "[w]ith intent tocause physical injury to another person, . . . causes such injury to suchperson" (Penal Law § 120.00 [1]). This particular count of the indictmentpertained to the assault that occurred in Schoonmaker's bathroom. Although the victimattempted to minimize defendant's conduct during this incident, she nonetheless testifiedthat defendant "hit" her as she was sitting on the toilet, causing her to fall into thebathtub, following which defendant struck her body with the broken shower curtain rod"[o]nce or twice" and hit her in the head with "[h]is fists." As noted previously, thisincident was witnessed, at least in part, by Schoonmaker's oldest child, who estimatedthat defendant struck the victim roughly 30 times. Given the testimony and otherevidence documenting the victim's various injuries, we reject defendant's claim that thejury's verdict convicting him of assault in the third degree was against the weight of theevidence. We reach a similar conclusion regarding defendant's conviction of endangeringthe welfare of a child (see Penal Law § 260.10 [1]). Accordingly,we discern no basis upon which to set aside the judgment of conviction upon suchgrounds.
Defendant's remaining arguments do not warrant extended discussion. To the extentthat defendant contends that his recorded telephone conversation with thevictim—made while he was incarcerated in the local jail—was protected bythe marital privilege (see CPLR 4502 [b]; CPL 60.10), we disagree. The maritalprivilege "does not protect every remark between spouses during a marriage" (People v Howard, 134 AD3d1153, 1153 [2015], lv denied 27 NY3d 965 [2016]) and, more to the point,does not "forbid inquiry into the personal wrongs committed by one spouse against theother" (id. at 1154 [internal quotation marks and citation omitted]). The privilegealso "does not extend to communications between spouses in which they are jointlyadvancing a criminal conspiracy or aiding each other in the commission of an on-goingcrime" (People v Watkins, 63 AD2d 1033, 1034 [1978] [internal quotation marksand citation omitted], lvs denied 45 NY2d 785 [1978], cert denied 439US 984 [1978]), nor does it apply "when the substance of [the] communication. . . is revealed to third parties" (People v Howard, 134 AD3d at1154 [internal quotation marks and citation omitted]).
At the start of the conversation, defendant was advised that the call he was placing"may be recorded or monitored." During his conversation with the victim, throughout thecourse of which any number of other voices may be heard in the background, defendantmade repeated references to the affidavits that the victim and Schoonmaker needed tocomplete in order to "get [him] out of [jail]." Notably, defendant and the victim discussedat length "what need[ed] to be said" in order to "clear" him of the underlying charges,and defendant reiterated that everyone involved—particularlySchoonmaker—needed to "stop worrying" about a potential "perjury charge,"noting that the victim and/or Schoonmaker could "erase" the "under penalty of perjury"[*6]language contained in the affidavits—thatdefendant apparently prepared—if they were concerned about a future prosecutionfor such an offense. Defendant further advised the victim that he was "not playing" inthis regard and that he was "not going to be the only one suffering" as a result of hisincarceration. When the victim asked defendant who would be suffering, defendantreplied, "All of us." Under these circumstances, we have no difficulty concluding that thesubstance of the phone call was not protected by the marital privilege and, therefore, wasproperly admitted into evidence at trial. Defendant's related claim—that CountyCourt erred in allowing testimony as to defendant's uncharged violation of the order ofprotection that precluded him from having any contact with the victim—is equallyunpersuasive.
To the extent that defendant asserts that County Court further erred in refusing tocharge petit larceny as a lesser included offense of robbery in the second degree, theresimply is "no reasonable view of the evidence, viewed most favorably to defendant, thathe stole [the victim's purse] without using force" (People v Green, 134 AD3d 418, 418 [2015], lvdenied 27 NY3d 965 [2016]). Accordingly, County Court properly denieddefendant's request to charge on this point. As to the issue of sentencing, we areunpersuaded that defendant met the criteria set forth in Penal Law § 60.12and, therefore, County Court properly denied his request to invoke the alternativesentencing provisions thereof. Finally, defendant's claim of prosecutorial misconduct, aswell as the alleged Rosario and Batson violations, are unpreserved for ourreview in the absence of a timely objection. Defendant's remaining contentions, includinghis assertion that he was denied the effective assistance of counsel, have been examinedand found to be lacking in merit.
McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:A portion of thisincident was witnessed by Schoonmaker's oldest child, who testified that defendant hitthe victim with the broken shower rod approximately 30 times during the course of thealtercation, which lasted roughly 10 to 15 minutes. Although the victim claimed thatdefendant only struck her with the pole "[o]nce or twice," she acknowledged that he alsohit her in the head with his fists.
Footnote 2:Prior to sentencing,County Court granted defendant's motion to dismiss the lesser included offense ofrobbery in the third degree.
Footnote 3:Defendant's subsequentmotion for a stay of execution of judgment and release on recognizance or bail pendingappeal was denied by a Justice of this Court.
Footnote 4:To the extent thatdefendant contends that the victim's purse "was appropriated under a claim of right madein good faith" (Penal Law § 155.15 [1]), we need note only that this defenseto specific types of larcenies has limited application to a forcible taking, i.e., robbery (see People v Pagan, 19 NY3d91, 96 [2012]; People vGreen, 5 NY3d 538, 542-545 [2005]) and, in our view, has no application here.