| People v Pilato |
| 2016 NY Slip Op 08741 [145 AD3d 1593] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael A. Pilato, Appellant. |
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered July 24, 2013. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (six counts), attempted murder in the second degree (twocounts) and arson 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 three counts each of intentional murder in the second degree (Penal Law§ 125.25 [1]) and felony murder in the second degree(§ 125.25 [3]), two counts of attempted murder in the second degree(§§ 110.00, 125.25 [1]) and one count of arson in the second degree(§ 150.15) based on allegations that he intentionally set fire to his family'sresidence in the middle of the night, killing three of the five family members who wereinside the residence at the time.
When the matter proceeded to trial, defense counsel relied heavily on the affirmativedefense of extreme emotional disturbance (EED defense) (see Penal Law§ 125.25 [1] [a]), but it is well settled that "[o]nly subdivision (1) [ofsection 125.25], dealing with intentional murder, contains a provision for mitigation ofthe charge by the affirmative defense of extreme emotional disturbance" (People vFardan, 82 NY2d 638, 642 [1993]; see People v Royster, 43 AD3d 758, 759 [2007], lvdenied 9 NY3d 1009 [2007]). Defendant thus contends that he was denied effectiveassistance of counsel on the ground that, by pursuing the EED defense, counseleffectively conceded defendant's guilt to the entire indictment, resulting in the functionalequivalent of a guilty plea. We reject that contention.
Here, there was no real issue at trial concerning who had started the fire atdefendant's residence. Defendant admitted to a friend and his sister's boyfriend that hehad started the fire, revealing particulars that no one but the perpetrator could haveknown, and he reeked of gasoline when he was taken into custody within hours after thefire erupted. In addition, defendant confessed his guilt to the police. Although CountyCourt suppressed the confession, it ruled that defendant's statements to the police couldbe used by the People for impeachment purposes at trial if defendant testified that he didnot start the fire. Defense counsel thus had "limited options for advancing a viabledefense" (People v Green, 187 AD2d 259, 259 [1992], lv denied 81NY2d 762 [1992]). Inasmuch as "[t]he evidence of defendant's guilt was overwhelming,and '[c]ounsel may not be expected to create a defense when it does not exist' "(People v Taussi-Casucci,57 AD3d 209, 210 [2008], lv denied 12 NY3d 788 [2009]), we concludeunder the circumstances of this case that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Although defendant contends that defense counsel was unaware that the EEDdefense did not apply to felony murder, the record does not support that contention.Defendant, who was 15 years old at the time of the offenses, was charged as a juvenileoffender (see CPL 1.20 [42] [2]). As opposed to adults charged with bothintentional and felony murder, juvenile offenders face different sentencing minimums forthe two offenses (compare Penal Law § 70.00 [2] [a]; [3] [a] [i],with § 70.05 [3] [a]). That disparity in the sentencing minimumsestablishes that it was reasonable for defense counsel to pursue a strategy focused onobtaining an acquittal on the intentional murder counts, even at the expense of exposingdefendant to an all but certain felony murder conviction. Had defense counsel's "strategybeen successful, defendant would have been eligible for a considerably lower sentence"(People v Frascone, 271 AD2d 333, 333 [2000]). We thus conclude that, contraryto defendant's contentions, defense counsel's strategy did not amount to the functionalequivalent of a guilty plea (see People v Washington [appeal No. 2], 19 AD3d1180, 1180-1181 [2005], lv denied 5 NY3d 833 [2005]; People v Barnes,249 AD2d 227, 228 [1998], lv denied 92 NY2d 893 [1998]; cf. People vBarbot, 133 AD2d 274, 275-276 [1987]), and the court did not err in failing toconduct a colloquy with defendant to determine whether he expressly consented to thatstrategy (see Washington, 19 AD3d at 1180-1181; People v Chaney, 284AD2d 998, 998 [2001], lv denied 96 NY2d 917 [2001]). Defendant's heavyreliance on Washington (5 Misc 3d 957, 957 [2004], revd 19 AD3d 1180[2005]) is misplaced inasmuch as there is no evidence on this record that defense counselpursued such a strategy "without defendant's consent" (19 AD3d at 1180). We havereviewed defendant's remaining challenges to the effectiveness of counsel and concludethat they lack merit (seegenerally People v Caban, 5 NY3d 143, 152 [2005]).
Contrary to the contention of defendant, the court did not err in denying defensecounsel's requests to dismiss the felony murder counts under the merger doctrine (see People v Steen, 107 AD3d1608, 1609 [2013], lv denied 22 NY3d 959 [2013]; People v Couser, 12 AD3d1040, 1041 [2004], lv denied 4 NY3d 762 [2005]), or to charge the jury onthe EED defense with respect to those counts (see Fardan, 82 NY2d at 642;Royster, 43 AD3d at 759).
Defendant further contends that he was denied his right to testify in his own defenseat trial. Even assuming, arguendo, that defendant was not required to preserve thatcontention for our review, we conclude that it lacks merit. Although there is a"fundamental precept that a criminal defendant has the right to testify in his or her owndefense guaranteed by the Federal and State Constitutions" (People v Robles, 115 AD3d30, 33-34 [2014], lv denied 22 NY3d 1202 [2014], reconsiderationdenied 23 NY3d 1042 [2014]), it is well settled that, ordinarily, "the 'trial court doesnot have a general obligation to sua sponte ascertain if the defendant's failure to testifywas a voluntary and intelligent waiver of his [or her] right' " (id. at 34;see generally People v Fratta, 83 NY2d 771, 772 [1994]). Contrary to defendant'scontention, this case does not present any of the " 'exceptional, narrowly definedcircumstances' " in which " 'judicial interjection through a directcolloquy with the defendant [would] be required to ensure that the defendant's right totestify is protected' " (Robles, 115 AD3d at 34; see Brown vArtuz, 124 F3d 73, 79 n 2 [1997], cert denied 522 US 1128 [1998]).
Although defendant contends that he was denied a fair trial by prosecutorialmisconduct on summation, he concedes that his contention is not preserved for ourreview inasmuch as defense counsel made no objection to any of the challengedcomments (see People vGlenn, 72 AD3d 1567, 1568 [2010], lv denied 15 NY3d 805 [2010]).We decline to exercise our power to review that contention as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence inasmuch as he failed to make a sufficientlyspecific motion to dismiss (see People v Gray, 86 NY2d 10, 19 [1995]) and,moreover, he failed to renew his motion after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In anyevent, we reject defendant's contention that the conviction is not supported by legallysufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])and, upon viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see Bleakley, 69 NY2d at 495).
Finally, we address defendant's contentions concerning the sentence. We concludethat New York's sentencing statutes, which provide for indeterminate life sentences forjuvenile offenders convicted of the crimes of murder of which defendant was convicted,do not violate the state or federal prohibitions against cruel and unusual punishment (see People v Taylor, 136 AD3d1331, 1332-1333 [2016], lv denied 27 NY3d 1075 [2016]; cf. Miller vAlabama, 567 US &mdash, &mdash, 132 S Ct 2455, 2460 [2012]), and we furtherconclude that the sentence is not unduly harsh or severe. Present—Smith, J.P.,Lindley, DeJoseph, NeMoyer and Troutman, JJ.