| People v Pizarro |
| 2017 NY Slip Op 04637 [151 AD3d 1678] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dean Orlando Pizarro, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered June24, 2013. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing that part convicting defendant of criminal possession of a weapon in the seconddegree and dismissing count three of the indictment, and as modified the judgment isaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon inthe second degree (§ 265.03 [3]), defendant contends that he was denied a fair trialand his right of confrontation by the admission in evidence of out-of-court statements made by acodefendant. We reject that contention.
Defendant contends that County Court erred in allowing a witness to testify to statementsmade by a nontestifying codefendant. Defendant objected to that testimony on hearsay grounds,and later sought a mistrial on the ground that the admission of the statement violated his rightsunder Bruton v United States (391 US 123, 135-136 [1968]), and we address first hisBruton contention. Even assuming, arguendo, that defendant's belated motion for amistrial is sufficient to preserve for our review his current Bruton contention (cf.People v Shabazz, 289 AD2d 1059, 1060 [2001], cert denied 537 US 1165,affd 99 NY2d 634 [2003], rearg denied 100 NY2d 556 [2003]), we conclude thatthe introduction of the statements did not implicate the principles of the Confrontation Clausethat underlie the rule in Bruton.
The statements at issue were made by a nontestifying codefendant to a person who testifiedat trial. That witness testified that the codefendant said before the incident that "we" were goingto shoot the victim, and that after the incident the codefendant said that "we" had shot him. Thewitness testified that defendant was one of several people who were with the codefendant whenthe statements were made, but the witness then clarified that the codefendant also stated that bothhe and another perpetrator shot the victim, and the other perpetrator, who was also present duringthe conversation, agreed. With respect to defendant, the codefendant's "confession was notincriminating on its face, and became so only when linked with evidence introduced later at trial"(Richardson v Marsh, 481 US 200, 208 [1987]; see Gray v Maryland, 523 US185, 195 [1998]). " 'Bruton and its progeny . . . do not construe theConfrontation Clause to demand further that a confession be redacted so as to permit noincriminating inference against the non-declarant defendant' " (People v Cedeno, 27 NY3d 110,118 [2016], cert denied 580 US &mdash, 137 S Ct 205 [2016]). To the contrary, it is wellsettled that "Richardson placed outside the scope of Bruton's rule those statementsthat incriminate inferentially" (Gray, 523 US at 195). Thus, inasmuch as the statementsare only inculpatory with respect to defendant when combined with other evidence establishingthat he was also part of the crime, we conclude that the court did not err in admitting thenontestifying codefendant's statements because they were "not facially incriminating [withrespect to defendant], and proper limiting instructions were given to the jury concerning the useof the codefendant's statement[s] as evidence against [this] defendant[ ]" (People vMarcus, 137 AD2d 723, 723 [1988], lv denied 72 NY2d 862 [1988]; see People v Gilocompo, 125 AD3d1000, 1001 [2015], lv denied 25 NY3d 1163; People v Dickson, 21 AD3d 646, 647 [2005]).
"In addition, the testimony of the [witness] concerning a conversation between [an]accomplice and defendant did not violate defendant's right of confrontation because thestatements of the . . . accomplice during that conversation were not themselvestestimonial in nature" (People vRobles, 72 AD3d 1520, 1521 [2010], lv denied 15 NY3d 777 [2010]). Althoughthe United States Supreme Court "le[ft] for another day any effort to spell out a comprehensivedefinition of 'testimonial' " (Crawford v Washington, 541 US 36, 68 [2004]), theCourt wrote that such a statement must be " '[a] solemn declaration or affirmation madefor the purpose of establishing or proving some fact' " (id. at 51). A "casualremark to an acquaintance," such as the statements at issue, does not suffice (id.; cf. People v Goldstein, 6 NY3d119, 129 [2005], cert denied 547 US 1159 [2006]).
Contrary to defendant's further contention, the court properly overruled his hearsayobjections to the admissibility of those statements. The codefendant's statements to the witnesswere admissible as statements against penal interest (see generally People v Shabazz, 22 NY3d 896, 898 [2013]), and asthe statements of a coconspirator in the furtherance of the conspiracy (see Robles, 72AD3d at 1521; see generally People vCaban, 5 NY3d 143, 148 [2005]).
Although the court erred in denying, without a Mapp hearing, defendant's midtrialmotion to suppress a travel itinerary seized from him by police officers when they initially spokewith him at the Syracuse airport, any error in that regard is harmless (see People vMassimi, 191 AD2d 969, 969 [1993]; see also People v Lazcano, 66 AD3d 1474, 1475 [2009], lvdenied 13 NY3d 940 [2010]; People v Michael A.D., 289 AD2d 1036, 1037 [2001]).The evidence is cumulative of other properly admitted evidence that defendant was planning onleaving the country and flying to Puerto Rico, and there is no reasonable possibility that theadmission of the travel itinerary contributed to defendant's conviction (see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialby prosecutorial misconduct on summation because he failed to object to any of those allegedimproprieties (see People v Young,100 AD3d 1427, 1428 [2012], lv denied 20 NY3d 1105 [2013]; People v Rumph, 93 AD3d 1346,1347 [2012], lv denied 19 NY3d 967 [2012]). In any event, that contention is withoutmerit (see People vCarrasquillo-Fuentes, 142 AD3d 1335, 1338 [2016], lv denied 28 NY3d 1143[2017]). Defendant failed to challenge the proficiency of the appointed interpreter at trial, andthus he also failed to preserve for our review his contention regarding the interpreter's allegedincompetence (see People vGutierrez, 100 AD3d 656, 656-657 [2012], lv denied 21 NY3d 1015 [2013],denied reconsideration 21 NY3d 1074 [2013], cert denied 571 US &mdash, 134 SCt 1034 [2014]; People vKowlessar, 82 AD3d 417, 418 [2011]). In any event, that contention is without meritinasmuch as "all instances of possible misunderstanding were sufficiently rectified so that thewitness'[s] testimony was properly presented to the jury" (People v Nedal, 198 AD2d 42,42 [1993]; see Kowlessar, 82 AD3d at 418).
Defendant further contends that the evidence is legally insufficient to establish his liability asan accessory to the murder charge. We reject that contention. "Accessorial liability requires onlythat defendant, acting with the mental culpability required for the commission of the crime,intentionally aid another in the conduct constituting the offense" (People v Chapman, 30 AD3d1000, 1001 [2006], lv denied 7 NY3d 811 [2006] [internal quotation marks omitted];see Penal Law § 20.00). Here, based on the evidence in the record, the jurycould have reasonably concluded that defendant and the two codefendants shared "a commonpurpose and a collective objective" (People v Cabey, 85 NY2d 417, 422 [1995]), and thatdefendant "shared in the intention of the codefendant[s]" to shoot the victim (People vMorris, 229 AD2d 451, 451 [1996], lv denied 88 NY2d 990 [1996]). Viewing theevidence in light of the elements of the crime of murder in the second degree as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is contrary to theweight of the evidence with respect to that charge (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
We agree with defendant, however, that the verdict is contrary to the weight of the evidencewith respect to the crime of criminal possession of a weapon in the second degree. Althoughseveral witnesses testified that defendant possessed a handgun, and other witnesses testified thatthe two codefendants fired weapons, the witnesses did not testify that they saw defendant fire hisweapon. The evidence further establishes that defendant and the two codefendants were at thescene and all three of them had a weapon, but the casings recovered at the scene matched onlytwo weapons. Furthermore, two different types of projectiles were recovered either at the sceneor from the body of the victim, and those projectiles matched the casings from the scene.Although one additional type of projectile was recovered from the body of the victim, theMedical Examiner opined that such projectile was likely from an earlier incident. In addition,defendant was not charged as an accomplice to the codefendants' possession of their weapons (cf. People v Primakov, 105 AD3d1397, 1397-1398 [2013], lv denied 21 NY3d 1045 [2013]; People v Zuhlke, 67 AD3d 1341,1341 [2009], lv denied 14 NY3d 774 [2010]). Consequently, we conclude that the verdictis against the weight of the evidence with respect to the criminal possession of a weapon countbecause the People failed to establish that defendant possessed an operable weapon (cf. People v Hailey, 128 AD3d1415, 1416 [2015], lv denied 26 NY3d 929 [2015]; see generally People vShaffer, 66 NY2d 663, 664 [1985]). We therefore modify the judgment accordingly.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,DeJoseph, NeMoyer and Curran, JJ.