| People v Booker |
| 2016 NY Slip Op 05514 [141 AD3d 834] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamel A. Booker, Appellant. |
Samuel D. Castellino, Big Flats, for appellant, and appellant pro se.
Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Tompkins County(Rossiter, J.), rendered June 28, 2013, upon a verdict convicting defendant of the crimesof aggravated assault upon a police officer or a peace officer, assault in the first degree,criminal possession of stolen property in the fourth degree, criminal possession of aweapon in the second degree (two counts), criminal use of a firearm in the first degreeand tampering with physical evidence.
Based on a report of a stolen vehicle, police attempted to stop a car driven bydefendant in the City of Ithaca, Tompkins County at about 10:50 p.m. on October 11,2012. Defendant sped away with the police in pursuit and, when the car finally stopped,defendant jumped out and fled on foot into nearby woods. Two members of the IthacaPolice Department ran after defendant. One officer ordered defendant to the groundwhile holding his taser. From a distance of about seven feet, defendant fired a single shotfrom a handgun, which struck that officer in the chest, seriously injuring him. The nextday, after being arrested, defendant was interviewed twice by the police and, during thesecond interview, he acknowledged shooting at the officer. He was indicted fornumerous crimes including, among others, attempted murder in the first degree,aggravated assault upon a police officer or a peace officer, assault in the first degree andcriminal use of a firearm in the first degree. The jury was unable to reach a verdict on thetop count of attempted murder in the first degree, but it found defendant guilty of theremaining counts. County Court sentenced him to an aggregate prison term of 25 yearswith five years of postrelease supervision. Defendant appeals.
Defendant first argues that County Court erred in denying his request to adjourn the[*2]trial. " 'The decision . . . whetherto grant an adjournment is generally committed to the sound discretion of the trial courtand will not be disturbed absent an abuse of that discretion' " (People v Jackson, 121 AD3d1185, 1186 [2014], lv denied 25 NY3d 1202 [2015], quoting People v Ruffin, 56 AD3d892, 893 [2008]). The trial court's discretion is "more narrowly construed where adefendant's fundamental rights are implicated" (People v Rodriguez, 6 AD3d 814, 816 [2004]; seePeople v Spears, 64 NY2d 698, 700 [1984]). When a defendant seeks anadjournment so that a potential witness can be produced, it is "incumbent upon [the]defendant to demonstrate, among other things, that the witness would furnish testimonythat is both material and favorable to the defense" (People v Benson, 260 AD2d864, 865 [1999], lv denied 93 NY2d 966 [1999]; see People v Hartman, 64AD3d 1002, 1003 [2009], lv denied 13 NY3d 860 [2009]).
The request for an adjournment resulted from the fact that the gun used by defendantwas not found for about two months, and the tests confirming that it was the relevant gunwere not completed until March 2013. Defendant requested an adjournment of the April2013 trial date in order to send the gun to Massachusetts to be tested by his own expert.County Court indicated that defendant's expert would be permitted to test the gun in thisstate prior to trial. The court denied the adjournment request noting that, inasmuch asdefendant had admitted shooting a gun at the officer and there was no theory of a secondshooter, defendant had failed to otherwise adequately demonstrate that the testing andpotential testimony of his expert was material to his case. Under such circumstances, weare unpersuaded that County Court abused its discretion in denying defendant's request toadjourn the trial (see People v Benson, 260 AD2d at 865; People vVredenburg, 200 AD2d 797, 798-799 [1994], lv denied 83 NY2d 859[1994]; cf. People v Hartman, 64 AD3d at 1005-1006).
Defendant next contends that the jury verdict was repugnant. He asserts that hisconvictions for aggravated assault upon a police officer or a peace officer and assault inthe first degree should have been dismissed because the jury was unable to reach averdict on the attempted murder charge and all three counts required proof of intent. "Byfailing to object before the jury was discharged, defendant failed to preserve hisargument that the verdict is repugnant" (People v McCottery, 90 AD3d 1323, 1326 [2011] [citationsomitted], lv denied 19 NY3d 975 [2012]; see People v Rolfe, 83 AD3d 1217, 1218 [2011], lvdenied 17 NY3d 809 [2011]). In any event, viewing the elements of the crimes ascharged to the jury (see People vMuhammad, 17 NY3d 532, 539 [2011]), the verdict is not repugnant in that thejury could have concluded that defendant intended to seriously injure—but not tokill—the police officer (see People v Samwell, 287 AD2d 663, 663[2001], lv denied 97 NY2d 760 [2002]; People v Higdon, 162 AD2d 957,958 [1990], lv denied 76 NY2d 893 [1990]).
County Court properly denied defendant's motion to suppress the statements he madein his second interview with police on the day he was arrested. Defendant contends that,although he was properly administered Miranda warnings before the firstinterview, his statements in the second interview should have been suppressed becausepolice failed to repeat the warnings before that interview. "Where a person in policecustody has been issued Miranda warnings and voluntarily and intelligentlywaives those rights, it is not necessary to repeat the warnings prior to subsequentquestioning within a reasonable time thereafter, so long as the custody has remainedcontinuous" (People vLowin, 36 AD3d 1153, 1154 [2007] [internal quotation marks, brackets andcitations omitted], lv denied 9 NY3d 847 [2007]; see People v Carelli, 41 AD3d1092, 1093 [2007]; People v Cody, 260 AD2d 718, 720 [1999], lvdenied 93 NY2d 1002 [1999]). Shortly after 6:35 a.m. on October 12, 2012,defendant was read his Miranda rights, he indicated that he understood thoserights and he affirmatively stated that he would speak to police without a lawyer. Afterthe first interview, defendant remained in police custody and, at approximately [*3]2:00 p.m. that same day, another officer—who hadknown defendant for many years—interviewed defendant. The officer did notreread Miranda warnings and, during that interview, defendant acknowledged toher that he had shot a handgun at the injured officer. Although there was a lapse of about7
We find no merit in defendant's pro se argument that County Court erred in denyinghis request for a justification instruction. He contends that he feared for his life whilebeing pursued by police, who allegedly yelled at him to stop or they would shoot. Evenassuming that the officers shouted these commands at defendant, the record makes clearthat defendant knew that he was being chased by police and he had the option ofavoiding any harm by adhering to their direction to stop. There is no reasonable view ofthe evidence that he was justified in using deadly force against the police (see e.g. People v Ramirez, 118AD3d 1108, 1112 [2014]; People v Taylor, 23 AD3d 693, 694 [2005], lvdenied 6 NY3d 818 [2006]).
Finally, defendant urges that the sentence was excessive. We are unpersuaded.Although "this Court has broad, plenary power to modify a sentence that it considersunduly harsh or severe, such is only done in extraordinary circumstances or where thetrial court has abused its discretion" (People v Williams, 65 AD3d 1423, 1424 [2009]; see People v Rollins, 51 AD3d1279, 1282 [2008], lv denied 11 NY3d 930 [2009]). In light of the fact thatdefendant received less than the maximum possible aggregate sentence and given thenature of the crimes, as well as the severity of the victim's injuries, we perceive neither anabuse of discretion nor extraordinary circumstances warranting a modification of thesentence (see e.g. People vParbhudial, 135 AD3d 978, 982 [2016], lv denied 27 NY3d 967 [2016];People v Winchell, 129AD3d 1309, 1313 [2015], lv denied 26 NY3d 973 [2015]; People v Chancey, 127 AD3d1409, 1413 [2015], lv denied 25 NY3d 1199 [2015]).
Peters, P.J., Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.