| People v Allen |
| 2017 NY Slip Op 05501 [152 AD3d 401] |
| July 6, 2017 |
| Appellate Division, First Department |
[*1](July 6, 2017)
| The People of the State of New York,Respondent, v Doran Allen, Appellant. The People of the State of New York,Respondent, v Bevon Burgan, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel),for Doran Allen, appellant.
Doran Allen, appellant pro se.
Andrea G. Hirsch, New York, for Bevon Burgan, appellant.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez and Efrain Alvarado, JJ., at grandjury-related applications; Ralph Fabrizio, J., at jury trial and sentencing), rendered January 10,2014, convicting defendant Allen of manslaughter in the first degree, and sentencing him to aterm of 25 years, reversed, on the law, and the matter remanded for a new trial. Judgment (samecourt and Justices), rendered January 17, 2014, convicting defendant Burgan of manslaughter inthe first degree and sentencing him to a term of 20 years, unanimously affirmed.
Both verdicts were supported by legally sufficient evidence, and were not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Initially, we find no basis for disturbing thejury's credibility determinations, and we find that the accomplice corroboration requirement setforth in CPL 60.22 (1) was amply satisfied. The evidence, viewed in totality, supports theconclusion that both defendants intentionally aided the commission of the homicide and shared acommunity of purpose with the persons who actually shot the victim (see generally PenalLaw § 20.00; People vScott, 25 NY3d 1107 [2015]). In addition to evidence about events leading up to theincident, there was testimony that immediately before the homicide, there was a conversationamong the participants in which one of the gunmen specifically referred to a plan to "hit" or"kill" the victim and other persons who might be accompanying him. The evidence alsodemonstrated that Burgan intentionally participated in the crime by remaining nearby with adrawn, loaded pistol, even though others did all the firing, and that Allen intentionallyparticipated by acting as a driver and by pointing out the victim.
The People re-presented, or commenced a re-presentation, of defendants' cases to the grandjury without first obtaining leave from the court, in violation of CPL 190.75 (3) (see People v Credle, 17 NY3d 556[2011]; People v Wilkins, 68 NY2d 269, 274-276 [1986]).
As to Burgan, the defect was cured when, although the re-presentation was in progress, thePeople sought and obtained leave, at a time when the safeguards of CPL 190.75 (3) could still[*2]be implemented, and Burgan was not prejudiced (seeWilkins at 277).
The circumstances are different as to Allen, since the presence of the unlawful murder charge"loom[ed]" over the trial and influenced the verdict (see People v Mayo, 48 NY2d 245,251 [1979]). We accordingly reverse Allen's conviction and remand for a new trial on themanslaughter count.
The murder charge lacked jurisdictional legitimacy (see People v McCoy, 109 AD3d 708 [1st Dept 2013]), violatingAllen's constitutional right to be tried for a felony only upon a valid indictment (see People vHansen, 95 NY2d 227, 231 [2000]). While the trial for murder did not violate doublejeopardy, it cannot be doubted that the presence of the charge "impugn[ed] the very integrity ofthe criminal proceeding" (Mayo, 48 NY2d at 252). There is nothing to suggest thatMayo is limited to double jeopardy cases in the manner suggested by the dissent; indeed,the Mayo court recognized that errors of "constitutional magnitude . . . areso fundamental that their commission serves to invalidate the entire trial," and are not susceptibleto a traditional spillover analysis, which has its "most convincing application in the area of trialerrors concerning the admissibility of evidence" (id. at 252).
The dissent maintains that the right to an indictment by a grand jury is not a right "so basic toa fair trial that their infraction can never be treated as harmless error" (internal quotation marksomitted). However, the New York State Constitution holds that no person shall be held to answer for an infamous crime unless uponindictment of the grand jury (NY Const, art I, § 6), and the right to indictment bygrand jury has been recognized "as not merely a personal privilege of the defendant but a publicfundamental right, which is the basis of jurisdiction to try and punish an individual" (People vBoston, 75 NY2d 585, 587 [1990] [internal quotation marks omitted]).
Although defendant Allen was ultimately acquitted of the murder charge, the charge'spresence loomed over the trial, and in some way influenced the verdict. Rather than continuing todeliberate concerning Allen's innocence—including evidence suggesting that he wassurprised by the shooting, and may have intended that the victim receive no more than a"clipping"—the jury may have concluded that it had sufficiently grappled with the proofby acquitting him of the most serious charge.
In Mayo, the Court held that a retrial was necessary even though the unlawful chargehad been dismissed prior to the jury retiring to deliberate. Allen's jury was allowed to deliberateon the illegal charge, increasing the likelihood that its presence influenced the verdict and"induced the jury to find him guilty of the less serious offense" (id. at 251).
The People's argument that Allen suffered no constitutional violation because he hadpreviously been indicted by a grand jury for murder ignores the jurisdictional nature of the defectand is nothing more than an attempt to circumvent the Credle violation.
Even under the dissent's spillover analysis, it cannot be concluded beyond a reasonable doubtthat Allen did not suffer prejudice as a result of the constitutionally infirm charge. Defensecounsel's strategy was no doubt affected by the need to present an effective defense to the moreserious charge.
For the reasons stated in the dissent, we reject defendant Burgan's other arguments.Concur—Acosta, P.J., Manzanet-Daniels, Mazzarelli and Gische, JJ.
Kahn, J., dissents in part in a memorandum as follows: I believe that defendants Doran Allenand Bevon Burgan were properly convicted and sentenced for the reasons that follow. Therefore,I respectfully dissent in part.
For the reasons stated by the majority, I agree that both verdicts were supported by legallysufficient evidence, and were not against the weight of the evidence.
Although the People re-presented, or commenced a re-presentation, of defendants' cases tothe grand jury without first obtaining leave from the court, and the circumstances of each of theoriginal presentations made it necessary to obtain such leave (see CPL 190.75 [3]; People v [*3]Credle, 17 NY3d 556 [2011]; People v Wilkins, 68NY2d 269, 274-276 [1986]), I conclude that neither defendant is entitled to any remedy. I agreewith the majority that as to Burgan, the defect was cured when, although the re-presentation wasin progress, the People sought and obtained leave, at a time when the safeguards of CPL 190.75(3) could still be implemented, and Burgan was not prejudiced (see Wilkins at 277).
As to Allen, there was no prejudice because the only effect of the improper re-presentationwas the addition by virtue of the second indictment of a count of second-degree murder, of whichAllen was acquitted. The procedural posture of People v Mayo (48 NY2d 245 [1979]),cited by the majority for other purposes and discussed below, is distinguishable, as there, thecounts of conviction were judicially-added lesser included counts of the subsequently dismissedsole count of the indictment and had never themselves been voted by a grand jury.
Although the People's failure to obtain court permission to re-present the murder charge to asecond grand jury was a jurisdictional error, and the murder charge should have been dismissed(see People v McCoy, 109 AD3d708 [1st Dept 2013]), there is no basis, without resort to speculation, for finding anyspillover effect (see People v Doshi, 93 NY2d 499, 505 [1999]). In determining whetherthe error in submitting the murder count to the jury requires reversal of the count of convictiondue to spillover effect, the paramount consideration "is whether there is a 'reasonable possibility'that the jury's decision to convict on the tainted counts influenced its guilty verdict on theremaining counts in a 'meaningful way' " (id., quoting People vBaghai-Kermani, 84 NY2d 525, 532-533 [1994]). The evaluation must be made on a case bycase basis, examining the nature of the error and its potential for prejudicial impact on the overalloutcome of the case (People vMorales, 20 NY3d 240, 250 [2012]). Our primary focus here must therefore be on theeffect which the prosecution's failure to obtain court permission before resubmitting the case to asecond grand jury might have had on the trial jury's ability to deliberate fairly on the nontaintedcounts.
In this case, notably, the evidence introduced in support of the murder count pertained to thesame criminal transaction and was otherwise entirely admissible in support of the manslaughtercount, suggesting an absence of spillover prejudice (see People v Williams, 292 AD2d474, 475 [2d Dept 2002]; see alsoPeople v Bulgin, 105 AD3d 551, 551 [1st Dept 2013], lv denied 21 NY3d 1002[2013] [tainted count and other counts "stemmed from the same incident"; no spillover error];compare People v Morales, 20 NY3d at 250 [introduction of numerous other allegedassaults, murders and other criminal acts over three year period by other gang members becauseof presence of tainted terrorism charge held to have prejudiced jury's deliberations]).Additionally, Allen was acquitted of the five remaining counts, regarding the attempted murdersof the victims, as well as the three weapons charges, demonstrating that any claims of spilloverprejudice are "belied by the fact that the jury actually voted to acquit on five of the remainingcounts" (People v Doshi, 93 NY2d at 506).
I find no support for Allen's argument that this statutory, procedural violation, albeit onejurisdictional in nature and relating to the state constitutional right to indictment by a grand jury,created a per se taint irrespective of any spillover effect. The position of Allen and the majority,in reliance upon People v Mayo, that the error here—a violation of CriminalProcedure Law § 190.75 (3) and Credle—warrants preclusion ofharmless error analysis and adoption of a finding of per se taint is unsupported in either law orfact. Mayo and Price v Georgia (398 US 323 [1970]), on which Mayorelied, involved violations of the Double Jeopardy Clause, where the defendants wereunconstitutionally subjected to a second trial, an "ordeal not to be viewed lightly" (Priceat 331). Indeed, the Court of Appeals in Mayo expressly stated, "[W]e. . . base our holding on the fundamental principles inherent in the double jeopardyclause itself" (Mayo, 48 NY2d at 252), and explained that "[w]hen a defendant isbrought to trial in violation of his rights under the double jeopardy clause of the FifthAmendment, the very power of the court to try him is implicated" (id.), in contrast toviolations of other procedural constitutional procedural guarantees (id.). The Courtfurther observed that "a trial held in violation of the double jeopardy clause must be deemed to bea nullity having no legal effect . . . [and] [a]ny less exacting standard wouldcontravene the clear purpose of the double jeopardy clause." (id. at 252-253). There is nodouble jeopardy issue present in this case, as defendant concedes.
[*4] While observing that "there are some errors ofconstitutional magnitude that are so fundamental that their commission serves to invalidate theentire trial" (Mayo, 48 NY2d at 252), and are not susceptible to harmless error analysis,the Mayo Court made clear that not all constitutional errors were to be so treated. Itcharacterized the qualifying errors to be those "constitutional infractions that impugn the veryintegrity of the criminal proceeding" (id.), citing its earlier ruling in People vFelder (47 NY2d 287 [1979]), involving the right to counsel, and applying its reasoning todouble jeopardy violations. In Felder, the Court of Appeals identified such errors, inaddition to the denial of the right to counsel, as the denial of the right to a public trial,prosecutorial misconduct, and judicial misconduct, finding them to be "so basic to a fair trial thattheir infraction can never be treated as harmless error" (id. at 296 [internal quotationmarks omitted]).
Neither defendant nor the majority advances any authority for including the constitutionalright to indictment by a grand jury among these rights. In any case, all of the charges presented tothe jury here were included in indictments voted by grand juries. The error in this case was not aconstitutional violation, but a statutory one, which did not impugn the integrity of the proceeding.There is, accordingly, no basis for extending the reach of the per se taint rule of Mayoand Felder to the present circumstances.
Defendants' ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters not reflected in, or fully explained by, the record, such as matters ofstrategy (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57NY2d 998 [1982]). Accordingly, since defendants have not made CPL 440.10 motions, themerits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to theextent the existing record permits review, I find that each defendant received effective assistanceunder the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; Strickland v Washington, 466 US 668 [1984]). Defendants have not shown thattheir counsel's alleged deficiencies fell below an objective standard of reasonableness, or that,viewed individually or collectively, they deprived the respective defendants of a fair trial oraffected the outcome of the case. Burgan's claims that the People violated their disclosureobligations under Brady v Maryland (373 US 83 [1963]), or presented allegedly falsetestimony, are based on factual assertions outside the record, and are thus unreviewable on directappeal (see e.g. People v Williams,43 AD3d 729 [1st Dept 2007], lv denied 9 NY3d 1010 [2007]).
The instances of alleged prosecutorial misconduct in the opening and closing statements,cited by Burgan, do not warrant reversal, and I reject Burgan's claim that his sentence wasexcessive.
Accordingly, I would affirm the judgments of conviction of defendants Allen andBurgan.