| People v Joe |
| 2017 NY Slip Op 00384 [146 AD3d 587] |
| January 19, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Darrell Joe, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Leeof counsel) and Covington & Burling LLP, New York (Jonathan D. Cohen ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), renderedOctober 4, 2011, convicting defendant, after a jury trial, of attempted murder in thesecond degree, and sentencing him, as a second violent felony offender, to a term of 16years, unanimously affirmed.
The charge of attempted murder arose out of allegations that defendant shot RalphBarry. In the hospital after the shooting, Barry described his assailant to Detective DanielBrady as "a light-skinned male with braids and a black coat." An eyewitness to theshooting met with Brady several days after the shooting and that meeting, Brady testified,led to the issuance of a "wanted card" for defendant which, he further testified, isgenerally issued "when a person gets identified." Defendant was charged with attemptedmurder when he was arrested for trespass five months after the shooting. A police officerhad become suspicious of defendant after observing him engaged in what appeared to bea hand-to-hand drug transaction and approaching him, at which point defendant fled tothe roof of a "Clean Halls" building. He then resisted arrest, gave a false name andrefused to be fingerprinted or provide an address.
Prior to the trial for the attempted murder charge (the trespass charge having beendropped by the People), defendant moved to exclude, as prejudicial, any evidenceregarding the circumstances of the trespass. The court denied the motion, finding that thetrespass details were relevant to the People's theory that defendant's flight exhibited hisconsciousness of guilt for the attempted murder.
Before jury selection, defendant, despite defense counsel's indication that defendantwould waive the right to be present at sidebars during jury selection, asserted his right tobe present. After each of two bench conferences that were held with prospective jurors,defense counsel confirmed on the record that the court had asked him to confer with hisclient as to whether the latter wanted to attend and defendant stated that it was acceptablefor the conference to be conducted without his presence. Two days later, a prospectivejuror informed the court that her fiancée had pleaded guilty to murder, in agang-related incident. The record does not indicate that the court directed defensecounsel to inquire into whether defendant wanted to be present at an ensuing sidebar.Rather, the transcript's only reference to attendance at the sidebar is as follows:"Whereupon, the following discussion takes place on the record, at the sidebar, in thepresence of the Court and counsel." During the sidebar, the juror indicated that she wasnot sure that she could be impartial. The juror was dismissed. The transcript then states:"Whereupon, the following takes place on the record in open Court in the presence of allparties."
Barry did not testify at trial. During Detective Brady's testimony, over defendant'sobjection as to relevance, the People showed him a photograph of Barry, which was thenshown to the jury. The People had argued that the picture was relevant to clarify whatBarry meant when, as related to the jury by the detective, he told the detective that theperson who shot him was "white complected" or "light-skinned." They explained that thisdescription was meant to be [*2]in comparison to his owncomplexion and so the picture was necessary to portray the contrast. The court agreedwith defendant's position that no inference could be drawn that the victim had beenmaking a comparative description, but allowed the picture to be shown to demonstratethat the victim was "a real person."
During its deliberations, the jury twice submitted a note to the court stating that itwas deadlocked. After the second note, the court issued an Allen charge,reviewed prior to delivery by defense counsel without objection, which included thefollowing statement: "Remember what you promised when you were being selected. Youeach solemnly promised that you will honestly deliberate. You promised on your oaththat you would decide the case only on the evidence in the courtroom and the laws as Itold them to you. And you would do so without prejudice, without sympathy, withoutconsidering punishment. You each solemnly promised that you would tell the others yourviews based on the evidence and the law, and you would try to convince the others thatyou were correct."
Defendant argues that the proceedings were tainted from the very outset by hisexclusion from the two sidebars during jury selection. "[A] sidebar discussion with aprospective juror regarding her background, bias and ability to be impartial is considereda material stage of a trial," and "[e]xclusion of a defendant from such a sidebardiscussion without first obtaining a knowing, intelligent and voluntary waiver of the rightto be present constitutes per se reversible error where the prospective juror is eitherseated on the jury, excused on consent, or peremptorily challenged by the defense" (People v Williams, 52 AD3d94, 96 [1st Dept 2008]). Here, given the prospective juror's inability to stateunequivocally that she could remain impartial despite her fiancee's having beenconvicted of murder, her dismissal for cause was ultimately required (see People vChambers, 97 NY2d 417, 419 [2002]; People v Childs, 247 AD2d 319, 322[1st Dept 1998], lv denied 92 NY2d 849 [1998]). Thus, Williams did notrequire defendant's presence for the sidebar. Having reached this conclusion, we need notaddress defendant's contention that the court violated his right to be present, a right thathe had affirmatively invoked at the beginning of the proceedings.
Defendant next argues that the court should not have permitted the facts surroundinghis trespass arrest to be presented to the jury, since, he states, there was no evidence thathe was aware he was being sought for a shooting when he fled the police, or that he fledbecause of such an awareness. Consciousness-of-guilt evidence may be admitted toestablish criminal liability so long as its relevance is not outweighed by its tendency toprejudice the defendant (see People v Bennett, 79 NY2d 464, 470 n 2 [1992]).We agree with the People that defendant's response to his being arrested for trespassing,including struggling with a police officer, giving a false name, and refusing to submit tofingerprinting or to furnish an address, was disproportionate, and at least suggested aconcern that he was soon going to be held to account for the shooting of Barry.People v Moses (63 NY2d 299 [1984]), cited by defendant, is distinguishablebecause it turned specifically on the adequacy of certain consciousness-of-guilt evidenceto satisfy the statutory accomplice corroboration requirement. Notably, the Court did nothold that evidence of the defendant's false alibi was inadmissible. People vGadsden (139 AD2d 925 [4th Dept 1988]), also relied on by the defense, does notstand for the proposition that flight can never be probative of guilt, and we find thatunder the circumstances presented here the court properly admitted the evidence.Defendant's arguments that the court should have at the very least issued a limitinginstruction with respect to the consciousness-of-guilt evidence and that the trespass andattempted robbery charges should never have been joined in the first place areunpreserved, and we decline to reach them in the interest of justice.
We agree with defendant that the admission of the photograph of Barry served nopractical purpose, and that the court properly declined to admit it for the profferedpurpose of permitting a comparison between Barry's skin color and defendant's.However, to the extent that the court admitted it to satisfy any desire the jury may havehad to visualize the nontestifying victim, it was harmless error. It is widely recognizedthat in a homicide case, it is prejudicial to place a picture of the deceased beforethe jury in a case with less than overwhelming evidence of guilt, since doing so can"inflame the jury's emotions and . . . introduce into the trial an [*3]impermissible sympathy factor" (People v Donohue,229 AD2d 396, 398 [2d Dept 1996], lv denied 88 NY2d 1020 [1996]). Indeed,each of the cases cited by defendant is a homicide case. Here, Barry was alive when thecase was tried. Had he come to court to testify, certainly the defense could not have beenheard to argue that his presence in the courtroom would have had a prejudicial impact onthe jury. Further, even though Barry was seriously wounded, the picture shown to thejury was not one showing him performing an activity he might no longer be able toengage in since he was shot. Rather, it was an innocuous headshot. Accordingly, it couldnot have elicited feelings of sympathy so strong as to dispose the jury to convictingdefendant.
Defendant further claims that the People should not have been allowed to elicithearsay testimony from Detective Brady concerning Barry's description of defendant,since Barry did not later make a corporeal identification (see People v Huertas, 75NY2d 487 [1990]). This argument is unpreserved, and we decline to reach it in theinterest of justice. Discussion of admissibility of the photograph and of theHuertas issue occurred simultaneously before the court, and, while defensecounsel clearly objected to the photograph and took an exception to the court's ruling, atno time did he expressly protest admission of the testimony concerning Barry'sdescription. Defendant's argument that he should have been permitted to impeach thedescription testimony by questioning Brady about Barry's inconsistent grand jurytestimony is unavailing. Barry would have had to testify directly, and defendant did notestablish that he was unavailable.
Defendant also contends that the court, instead of simply striking Brady's testimonythat, upon interviewing the eyewitness after the shooting, he issued a "wanted card" andthat wanted cards are issued "when a person gets identified," should have declared amistrial. We find that the overall impact of the suggestion that the eyewitness identifieddefendant was insufficient to warrant a mistrial. To the extent defendant complains thatthe prosecutor referenced the testimony during his summation, it is noted that this echoeddefense counsel's own reference to the wanted card during his summation.
We reject defendant's position that the Allen charge, to the extent it remindedthe jurors that they "each solemnly promised that you would tell the others your viewsbased on the evidence and the law, and you would try to convince the others that youwere correct" was coercive and impermissibly shifted the burden of proof to him fromthe People. Read as a whole, the instruction was balanced and it did not exert untowardpressure on the jury, since it adequately conveyed the principle that a juror should notabandon his or her conscientiously held beliefs in reaching a verdict. This case contrastswith People v Aponte (2NY3d 304 [2004]), relied on by defendant, in which the Court of Appealsrecognized a host of elements that rendered the charge unbalanced and coercive, andobserved that "the charge here did not include any encouraging language to balance itsinstruction that the jury needed to 'decide this case' " (2 NY3d at 309).
Defendant's argument that the charge impermissibly shifted the burden of proof issimilarly unavailing (see People v Antommarchi, 80 NY2d 247 [1992]). InAntommarchi, the court's Allen charge contained the following language:"You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on anyrelative point or material element or on the evidence or lack of it, and when one or moreof your fellow jurors questioned you about it, you would be willing and able to give himwhat you believe is a fair, calm explanation for your position based upon the evidence orthe lack of evidence in this particular case" (id. at 251). The Court concluded thatthis language impermissibly shifted the People's burden, finding that it "plac[ed] on eachjuror the express duty of giving a 'fair, calm explanation for your position,' " and"require[d] jurors to supply concrete reasons 'based upon the evidence' "(id. at 252). Other cases have reversed convictions based on similar language(see People v Arce, 215 AD2d 277, 278 [1st Dept 1995] ["If you had areasonable doubt on any relative point . . . and one or more of your fellowjurors questioned you about it, he (sic) would be willing and able to give what youbelieve is a fair, calm explanation of your position based upon the evidence or lack ofevidence"]; People v Henry, 283 AD2d 587, 588 [2d Dept 2001] ["try toconvince the others, if you [*4]could, that you're correctand show them why you're correct. Show them the law. Show them the evidence"]).
The sentence complained of here, although it did use the word "convince," isdistinguishable from the language found improper in Antommarchi and similarcases. Considered in context, it does not rise to the level of "impos[ing] an affirmativeobligation on the juror to specifically articulate the basis for such doubt"(Antommarchi, 80 NY2d at 251).
Finally, we find that certain statements made by the prosecutor during his summationdid not rise to the level of misconduct, and we perceive no basis for reducing thesentence. Concur—Acosta, J.P., Richter, Mazzarelli, Kapnick and Gesmer, JJ.