| People v Davis |
| 2017 NY Slip Op 02738 [149 AD3d 451] |
| April 6, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Larry Davis, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J. at grand jury resubmissionauthorization; Gregory Carro, J. at jury trial and sentencing), rendered July 23, 2013, as amendedJuly 31, 2013, convicting defendant of murder in the second degree (two counts), burglary in thefirst degree, aggravated criminal contempt and criminal contempt in the first degree, andsentencing him, as a second felony offender, to an aggregate term of 25 years to life,unanimously affirmed.
Except for an argument concerning the unlawful remaining element of burglary, which wefind unavailing, defendant's legal sufficiency claims are unpreserved and we decline to reviewthem in the interest of justice. As an alternative holding, we also reject them on the merits. Wealso find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). With regard to the intentional murder conviction, the viciousness andextent of defendant's attack on his elderly grandmother, accompanied by the surroundingcircumstances, support the inference that defendant intended to beat her to death. With regard tothe felony murder conviction and its underlying crime of burglary, the evidence warranted theinference that defendant unlawfully remained in the victim's apartment with the intent to commita crime (see People v Lewis, 5NY3d 546, 552 [2005]).
The police did not violate defendant's right to counsel when they questioned him about themurder. Even assuming that defendants' right to counsel had attached on a pending criminaltrespass case, the murder was not "so closely related transactionally, or in space or time" to anearlier trespass he committed, upon which an arrest warrant had issued, "that questioning on theunrepresented matter would all but inevitably elicit incriminating responses regarding the matterin which there had been an entry of counsel" (People v Cohen, 90 NY2d 632, 638[1997]). The trespass occurred nearly a month before the murder, at a different location. The factthat the victim's refusal to pay defendant's fine for the trespass may have provided a motive forthe murder did not make the two crimes so related that representation on the trespass precludeddefendant from effectively waiving his right to counsel regarding the murder (see e.g. People v Tucker, 30 AD3d312, 313 [1st Dept 2006], lv denied 7 NY3d 818 [2006]).
The court properly exercised its discretion in declining to order a CPL article 730competency examination of defendant (see Pate v Robinson, 383 US 375 [1966];People v Tortorici, 92 NY2d 757 [1999], cert denied 528 US 834 [1999];People v Morgan, 87 NY2d 878 [1995]). There is nothing in the record to cast doubt ondefendant's competency, and the record supports the court's finding that defendant, who activelysought a 730 examination, was attempting to manipulate the proceedings by way of, among otherthings, a plainly feigned suicide attempt.
Defendant forfeited his right to be present at trial when he refused to be produced in thecourtroom, with full knowledge that his trial was in progress (see People v Sanchez, 65NY2d 436, 443-444 [1985]) and having been previously warned by the trial court that the trialwould [*2]proceed in his absence. We have considered andrejected defendant's arguments on this issue, including those relating to his alleged mentalstate.
The court providently exercised its discretion in admitting images and descriptions ofpornography websites that defendant visited on the victim's computer shortly after the murder. Inhis statement to the police, defendant claimed that the death was accidental and that he wasgrieving for the loss of his grandmother in the period following her death. The evidence at issuetended to refute that claim (see generally People v Aska, 91 NY2d 979, 981 [1998]), andwe do not find that it was so inflammatory as to create undue prejudice.
The People, who originally obtained an indictment charging only second-degreemanslaughter, properly re-presented the case to the grand jury for the purpose of having itconsider additional, more serious charges. Initially, we note that we have examined the grandjury minutes in camera, and that they confirm that the first grand jury was never asked to vote onthe murder and burglary charges. In any event, regardless of whether court authorization underCPL 190.75 (3) for the resubmission was necessary in the first place (but see CPL 200.80[existing indictments may be superseded]), the court providently exercised its discretion when itauthorized the re-presentation. "[L]eave to re-present should be granted as a matter of course"where, as here, there is no indication "that the first grand jury's decisional authority was beingsubverted" (People v Credle, 17NY3d 556, 562 [2011]), and "CPL 190.75 (3) does not limit the court's discretion tosituations where the People make a showing of newly discovered evidence" (People vMorris, 248 AD2d 169, 170 [1st Dept 1998], affd 93 NY2d 908 [1999]).
Defendant failed to preserve his claim that the resubmission application should not have beenmade and determined on an ex parte basis, and we decline to review it in the interest of justice.As an alternative holding, we reject it on the merits (see e.g. People v Martinez, 141 AD3d 429 [1st Dept 2016], lvdenied 28 NY3d 972 [2016]).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters not reflected in, or fully explained by, the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claims may not be addressed on appeal. In the alternative, to the extent theexisting record permits review, we find that defendant received effective assistance under thestate and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that any ofcounsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewedindividually or collectively, they deprived defendant of a fair trial or affected the outcome of thecase.
We perceive no basis for reducing the sentence. Concur—Renwick, J.P., Mazzarelli,Manzanet-Daniels, Feinman and Webber, JJ.