| People v Towns |
| 2017 NY Slip Op 04611 [151 AD3d 1638] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Agape A.Towns, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Dianne C. Russell of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), renderedJanuary 16, 2013. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree (six counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofsix counts of robbery in the first degree (Penal Law § 160.15 [2], [4]) arising out ofa holdup at a restaurant. Defendant's primary contention on appeal is that County Court's conductin negotiating and entering into a cooperation agreement with a prosecution witness denieddefendant due process of law. Defendant contends that the court's actions, including acting as aprosecutor and implicitly vouching for the credibility of a witness, deprived him of a fair trialbefore an unbiased and neutral judge and usurped the jury's fact-finding function. Defendant'scontention arises out of events that transpired in significant part outside the record of defendant'strial, in which the court interjected itself into stalled plea negotiations between the People andone of the codefendants, offering leniency in the sentencing of the codefendant on the conditionthat he testify truthfully against defendant at his trial.
"Trial judges have wide discretion in directing the presentation of evidence but must exercisethat discretion appropriately and without prejudice to the parties" (People v Arnold, 98NY2d 63, 67 [2002]). "While 'neither the nature of our adversary system nor the constitutionalrequirement of a fair trial preclude a trial court from assuming an active role in the truth-seekingprocess,' the court's discretion is not unfettered . . . The overarching principlerestraining the court's discretion is that it is the function of the judge to protect the record at trial,not to make it" (id.). "Where the Trial Judge oversteps the bounds and assumes the role ofa prosecutor, however well intentioned the motive[,] there is a denial of a fair trial and there mustbe a reversal" (People v Ellis, 62 AD2d 469, 470 [1978]; see People v Jacobsen,140 AD2d 938, 940 [1988]; see generally People v Yut Wai Tom, 53 NY2d 44, 56-58[1981]).
We criticize, in the strongest possible terms, the conduct of the court in this case inpersonally negotiating and entering into a quid pro quo cooperation agreement with thecodefendant whereby the court promised to sentence the codefendant within a specific range inexchange for his testimony against defendant. We nevertheless cannot conclude on this recordthat defendant was deprived of a fair trial by the codefendant's testimony, nor can we concludethat the court in essence vouched for the truth of that testimony. Because the court's conduct inthis case occurred wholly outside the presence of the jury, we conclude that the court did notassume the appearance and role of a prosecutor in the course of defendant's trial. Further, we notethat the facts and circumstances surrounding the codefendant's plea deal and promise ofcooperation were fully elucidated for the jury on the direct examination and cross-examination ofthe codefendant. Any prejudice to defendant caused by his counsel's decision to cross-examinethe codefendant concerning his agreement with the court was cured by the court's instruction tothe jury, which defense counsel helped to formulate. That instruction, which was to the effectthat the jurors alone were to determine the credibility of the codefendant's testimony and werenot to infer that the court had an opinion as to defendant's guilt or lack of guilt, is one that thejury is presumed to have followed (seePeople v Morris, 21 NY3d 588, 598 [2013]; People v Spears, 140 AD3d 1629, 1630 [2016], lv denied28 NY3d 974 [2016]).
We also reject defendant's contention that the trial testimony of a different prosecutionwitness should have been precluded in its entirety as the fruit of the poisonous tree because thepolice learned the identity of that witness from defendant after violating his right to counsel. Weconclude that the witness's trial testimony was sufficiently attenuated from the taint of anyconstitutional violation, because such violation led "not to contraband or other real evidence, butto a witness, a further and independent volitional source of information—a source whichbecame productive only upon the application of additional, interacting forces to be found in thepersonality and character of the witness and, perhaps, in the intelligence and skill of herquestioners" (People v Mendez, 28 NY2d 94, 101 [1971], cert denied 404 US 911[1971]). We further conclude that defense counsel was not ineffective for failing to move topreclude the witness's testimony on the foregoing basis because such a motion was unlikely tosucceed (see People v Ennis, 41AD3d 271, 274 [2007], affd 11 NY3d 403 [2008], cert denied 556 US 1240[2009]; People v Caban, 5 NY3d143, 152 [2005]). Although we agree with defendant's further contention that hearsaytestimony was improperly elicited during that witness's testimony, we conclude that the error isharmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Finally, we conclude that the sentence is not unduly harsh or severe. Present—Centra,J.P., Lindley, DeJoseph, NeMoyer and Scudder, JJ.