People v Fermin

2017 NY Slip Op 03769 [150 AD3d 876]

May 10, 2017

Appellate Division, Second Department

As corrected through Wednesday, June 28, 2017

[*1]

The People of the State of New York,Respondent, v Urban Fermin, Appellant.

Lynn W. L. Fahey, New York, NY (De Nice Powell of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered March 18, 2013, as amended March 25, 2013, convicting him of attempted murder inthe first degree (two counts), attempted murder in the second degree (two counts), recklessendangerment in the first degree, attempted assault in the first degree (two counts), attemptedaggravated assault on a police officer (two counts), burglary in the first degree, robbery in thefirst degree (two counts), robbery in the second degree (two counts), criminal possession of aweapon in the second degree (two counts), grand larceny in the fourth degree, criminalpossession of stolen property in the fourth degree, criminal possession of stolen property in thefifth degree (two counts), unauthorized use of a vehicle in the first degree, and unlawful fleeing apolice officer in a motor vehicle in the third degree, upon a jury verdict, and imposingsentence.

Ordered that the judgment, as amended, is modified, on the law, by vacating the convictionsof attempted murder in the second degree, vacating the sentences imposed thereon, anddismissing those counts of the indictment; as so modified, the judgment, as amended, isaffirmed.

The defendant, who was tried together with a codefendant, stole a car, committed a homeinvasion, robbed a woman on the street, and then led the police on a car chase through SouthOzone Park and South Jamaica, Queens, while the codefendant shot at the police out the carwindow. The defendant was apprehended on foot after the men abandoned the car; thecodefendant was arrested at home later the same day. After a trial, the jury found the defendantguilty of numerous crimes.

The record does not support the defendant's claim that a Batson violation occurred inthis case (see Batson v Kentucky, 476 US 79 [1986]). Where a party contends thatopposing counsel has used peremptory challenges in a discriminatory manner, the trial court mustengage in a three-step process for evaluating that contention: " 'The first step requiresthat the moving party make a prima facie showing of discrimination in the exercise ofperemptory challenges; the second step shifts the burden to the nonmoving party to providerace-neutral reasons for each juror being challenged; and [*2]thethird step requires the court to make a factual determination as to whether the race-neutralreasons are merely a pretext for discrimination' " (People v Jones, 139 AD3d 878, 879 [2016], quoting People v Carillo, 9 AD3d 333, 334[2004]; see Batson v Kentucky, 476 US 79 [1986]; People v Smocum, 99 NY2d418, 421-422 [2003]; People v Allen, 86 NY2d 101, 104 [1995]). Thus, a party assertinga Batson challenge " 'should articulate and develop all of the grounds supportingthe claim, both factual and legal, during the colloquy in which the objection is raised anddiscussed' " (People vGamble, 137 AD3d 1053, 1054 [2016], quoting People v Childress, 81 NY2d263, 268 [1993]). Here, the Supreme Court correctly determined that the defendant failed tomake the requisite prima facie showing of discrimination, as he failed to make a record sufficientto evaluate his claim that the People used peremptory challenges in a discriminatory manner.Accordingly, the burden did not shift to the prosecution to respond with a neutralexplanation.

Similarly unavailing is the defendant's contention regarding an ex parte discussion of apossible material witness order for a prosecution witness. Pursuant to CPL article 620, either theprosecution or the defendant may seek an order adjudicating a person a material witness andfixing bail to secure that person's attendance at trial (see CPL 620.10, 620.30)." 'Neither the defendant nor the prosecution is entitled to notice of an application for amaterial witness hearing, and neither party has standing to contest or to participate in a hearingon an application made by the other' " (People v Hamilton, 272 AD2d 553, 553[2000], quoting People v Bond, 264 AD2d 851, 851 [1999], revd on other grounds95 NY2d 840 [2000]; see People v Owens, 235 AD2d 268 [1997]; People vTuraine, 227 AD2d 299 [1996]; People v Brown, 195 AD2d 967 [1993]; see also People v Pilgrim, 101 AD3d435, 435-436 [2012]; People vMauro, 49 AD3d 268, 269 [2008]). Here, the record demonstrates that the sole issueconsidered by the Supreme Court at the ex parte discussion was whether an eyewitness waswilling to attend trial voluntarily or should be compelled to attend via a material witness order.Since this discussion was ministerial in nature and bore no relationship to the merits of thecharges against the defendant, his exclusion did not have a substantial relationship to his abilityto defend against those charges (see People v Turaine, 227 AD2d at 299). Likewise, thedefendant has not established that he was entitled to a copy of the transcript of the discussion orthe submissions in support of the prosecution's earlier material witness application relating to thiswitness (see generally People v Owens, 235 AD2d at 268).

In addition, although the defendant established that the prosecution inadvertently delayed indisclosing certain information regarding threats allegedly made against a prosecution witness inviolation of People v Rosario (9 NY2d 286 [1961]), he failed to demonstrate that he wassubstantially prejudiced by the late disclosure, as he extensively covered the same subject matterin his cross-examination of the witness (see CPL 240.75; People v Martinez, 71NY2d 937, 940 [1988]; People vRizzo, 142 AD3d 1187 [2016]; People v Aviles, 119 AD3d 871 [2014]).

The defendant has largely preserved for appellate review his contention that the prosecutorengaged in misconduct during summation (see People v Beckham, 142 AD3d 556 [2016]; People v Marcus, 112 AD3d 652,653 [2013]; People v Rogers, 92AD3d 903, 904 [2012]; People vMartinez, 69 AD3d 958, 959 [2010]; People v Montalvo, 34 AD3d 600, 601 [2006]). However, themajority of the prosecutor's argument fell within the permitted scope of summation andconstituted fair comment upon the evidence or a fair response to the defense summation (seePeople v Ashwal, 39 NY2d 105, 109 [1976]; People v White, 5 AD3d 511 [2004]). To the limited extent that theprosecutor's remarks may have exceeded those bounds, the Supreme Court promptly addressedthe defendant's objections and issued appropriate curative instructions, thereby alleviating anypotential prejudice to the defendant. Furthermore, the defendant's contention that the prosecutorimproperly vouched for the police witnesses is unpreserved for appellate review and, in anyevent, to the extent that any of the comments were improper, they were not so flagrant orpervasive as to deny the defendant a fair trial (see People v Taylor, 120 AD3d 519, 521 [2014]; People v Persaud, 98 AD3d 527,529 [2012]).

We find unpersuasive the defendant's contention that he was entitled to an adverse inferencecharge regarding certain lost evidence. In general, the People have "an affirmative obligation topreserve all discoverable evidence within their possession" (People v James, 93 NY2d620, 644 [1999]). However, " '[t]he loss or destruction of evidence prior to trial does notnecessarily require imposition of a sanction' " (People v Jackson, 133 AD3d 883, 884 [2015], quoting People vSeignious, 114 [*3]AD3d 883, 884 [2014]). " 'Thecourt's determination of an appropriate sanction must be based primarily [upon] the need toeliminate prejudice to the defendant' " (People v Jackson, 133 AD3d at 884,quoting People v Rice, 39 AD3d567, 568-569 [2007]; see People vBernard, 100 AD3d 916, 917 [2012]). The court should also consider " 'theproof available at trial, the significance of the missing evidence and whether the loss wasintentional or inadvertent' " (People v Seignious, 114 AD3d at 884, quotingPeople v Haupt, 71 NY2d 929, 931 [1988]). Here, the People were unable to produceevidence which had been stored in a warehouse due to damage to the building caused byHurricane Sandy. The unavailable evidence, consisting of various items of clothing recoveredfrom the area of the defendant's arrest, had already been tested for DNA, and the test results weremade available to the defendant. Moreover, the crimes at issue here occurred in February 2010,and Hurricane Sandy did not occur until October 2012, more than 21/2 years later,and there is no indication that the defendant requested either access to that evidence or theperformance of any further testing of it during that lengthy interval. Most significantly, there wasno indication of any bad faith on the part of the prosecution, notwithstanding the defendant'sargument that greater care should have been taken in storing the evidence or greater effortsshould have been made to recover it (see People v Haupt, 71 NY2d at 931). Since the lossof this evidence due to a natural disaster did not prejudice the defendant or prevent him frompresenting a defense, the Supreme Court properly declined to give an adverse inferenceinstruction and instead elected to simply instruct the jury that it could consider the prosecution'sloss of the evidence in its deliberations (see People v Ignacio, 148 AD3d 824 [2017]; People v Hester, 122 AD3d 880,880-881 [2014]).

The defendant's challenge to certain testimony regarding the DNA evidence is unpreservedfor appellate review and, in any event, without merit (see People v John, 27 NY3d 294, 313-315 [2016]; People v Brown, 13 NY3d 332,340 [2009]; People v Henderson,142 AD3d 1104 [2016]; People vBeckham, 142 AD3d 556 [2016]; People v Hernandez, 140 AD3d 1187 [2016]; People v Kelly, 131 AD3d 484,486 [2015]; People v Fernandez,115 AD3d 977, 978-979 [2014]).

However, the defendant's convictions of two counts of attempted murder in the seconddegree must be vacated. Where multiple counts, including inclusory concurrent counts, aresubmitted to a jury, "[a] verdict of guilty upon the greatest count submitted is deemed a dismissalof every lesser count submitted" (CPL 300.40 [3] [b]). A count is an inclusory concurrent countwhere (1) it is "impossible to commit the greater crime without concomitantly committing thelesser offense by the same conduct" and (2) there is "a reasonable view of the evidence to supporta finding that the defendant committed the lesser offense but not the greater" (People v Miller, 6 NY3d 295, 302[2006]). As the People correctly concede, the counts of attempted murder in the second degreewere inclusory concurrent counts of attempted murder in the first degree (see id. at300-302; People v Rosas, 30 AD3d545, 546 [2006], affd 8 NY3d 493 [2007]); thus, the defendant's convictions ofattempted murder in the second degree and the sentences imposed thereon must be vacated andthose counts of the indictment must be dismissed.

The defendant's remaining contentions are without merit. Mastro, J.P., Leventhal, Hall andSgroi, JJ., concur.