| People v Anthony |
| 2017 NY Slip Op 05869 [152 AD3d 1048] |
[*1](July 27, 2017)
| 1 The People of the State of New York, Respondent, v MauriceAnthony, Also Known as M.O., Appellant. |
Salvatore Adamo, Albany, for appellant, and appellant pro se.
Kirk O. Martin, District Attorney, Owego (Lauren D. Konsul, New York State ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered May 9, 2014, upon a verdict convicting defendant of the crimes of murder in the firstdegree, murder in the second degree and attempted robbery in the first degree (two counts).
On the afternoon of December 19, 2010, the victim and his cousin picked up defendant in thevictim's silver sport utility vehicle (hereinafter SUV) for the purpose of completing a sale ofmarihuana. During the course of that transaction, the victim rejected defendant's invitation tobecome a member of the Bloods gang. Shortly after the victim parked the SUV to complete thesale, defendant demanded that the victim turn over all of his marihuana and money. When thevictim did not respond, the victim's cousin heard "a gun cock back," and defendant struck thevictim's face with a handgun. After the victim and defendant exited the SUV, defendant fired twogunshots near the rear of the SUV. The victim returned to the driver's seat and placed the SUV indrive; however, defendant fired two more gunshots in the direction of the SUV, shattering theback window, and the SUV subsequently crashed into nearby parking meters. The victim diedshortly thereafter from a gunshot wound.
The victim's cousin identified the shooter as the same male whom she had observed, twodays prior, buy $20 of marihuana from the victim and receive a ride to a local Xtra Mart, whichwas captured by the store's surveillance video. Additionally, the police retrieved a Boost [*2]mobile phone from the back seat of the victim'svehicle—bearing defendant's fingerprint and containing personal photographs and videosof defendant. Defendant subsequently was indicted and, following a jury trial, convicted ofmurder in the first degree, murder in the second degree and two counts of attempted robbery inthe first degree. County Court thereafter imposed concurrent prison terms of life without thepossibility of parole for the conviction of murder in the first degree, 25 years to life for theconviction of murder in the second degree and 15 years for each of the two attempted robberyconvictions. Defendant now appeals.
Initially, we find no error in County Court's ruling that, with respect to juror No. 17, defensecounsel failed to articulate a prima facie case of purposeful discrimination as required for aBatson challenge. "Under the well-established Batson framework, an objectingparty bears the burden of establishing on a prima facie basis that the challenge was exercised onthe basis of the juror's race; only if this initial burden is satisfied does the burden then shift to thenonmoving party to provide a race-neutral explanation for the removal of the prospective juror"(People v Morris, 140 AD3d1472, 1475-1476 [2016] [citations omitted], lv denied 28 NY3d 1074 [2016]; seeBatson v Kentucky, 476 US 79, 96-98 [1986]; People v Green, 141 AD3d 1036, 1038-1039 [2016], lvdenied 28 NY3d 1072 [2016]; People v Jones, 136 AD3d 1153, 1157-1158 [2016], lvdismissed 27 NY3d 1000 [2016]). In order for the moving party to satisfy its burden at stepone, it must "show[ ] that the facts and circumstances of the voir dire raise an inference that theother party excused one or more jurors for an impermissible reason" (People vHenderson, 305 AD2d 940, 940 [2003] [internal quotation marks and citations omitted],lv denied 100 NY2d 582 [2003]; see People v Skervin, 13 AD3d 661, 662 [2004], lv denied5 NY3d 833 [2005]). A defendant "need not show a pattern of discrimination" (People vJones, 136 AD3d at 1159); rather, he or she may demonstrate the requisite facts andcircumstances by showing that "members of the cognizable group were excluded while otherswith the same relevant characteristics were not" or that the People excluded members of thecognizable group "who, because of their background and experience, might otherwise beexpected to be favorably disposed to the prosecution" (People v Childress, 81 NY2d 263,267 [1993]; see e.g. People v Jones, 136 AD3d at 1158).
Following the first round of jury selection and after County Court denied their challenge forcause, the People exercised a peremptory challenge of juror No. 17 based on the juror's initialadmission that his two previous marihuana-related arrests could make it difficult for him toserve. In response, defendant raised a Batson objection, claiming that the People's use ofa peremptory challenge demonstrated purposeful discrimination as juror No. 17, the only AfricanAmerican in the first jury pool, ultimately stated that he could be fair and impartial. As defendantfailed to articulate any other facts or relevant circumstances to establish a prima facie case ofdiscrimination, the burden did not shift to the People to offer a facially neutral explanation forthe challenge (see People v Hunt, 50AD3d 1246, 1247 [2008], lv denied 11 NY3d 789 [2008]; People v Pryor, 14 AD3d 723,724-725 [2005], lv denied 6 NY3d 779 [2006]; People v Williams, 306 AD2d691, 691 [2003], lv denied 1 NY3d 582 [2003]). Accordingly, we find that the courtproperly denied defendant's Batson challenge (see People v Jenkins, 84 NY2d1001, 1003 [1994]).
Defendant also challenges several of County Court's pretrial rulings, including the court'sdecision to allow testimony related to defendant's alleged Bloods gang membership. "Generallyspeaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall withinthe recognized Molineux exceptions—motive, intent, absence of mistake, commonplan or scheme and identity—or where such proof is inextricably interwoven with thecharged crimes, provides necessary background or completes a witness's narrative" (People v Burnell, 89 AD3d 1118,1120 [2011] [internal quotation marks, brackets and citations omitted], lv denied 18[*3]NY3d 922 [2012]; see People v Womack, 143 AD3d 1171, 1173 [2016], lvdenied 28 NY3d 1151 [2017]). Here, defendant's purported gang membership fell withinseveral Molineux exceptions, including placing the testimony regarding defendant'searlier attempt to recruit the victim in context and establishing defendant's motive for theshooting (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Williams, 28 AD3d 1005,1008 [2006], lv denied 7 NY3d 819 [2006]). We further conclude that the probative valueof defendant's purported gang membership outweighed its prejudicial effect and note that thecourt "mitigated any undue prejudice by providing limiting instructions" (People v McCommons, 143 AD3d1150, 1154 [2016], lv denied 29 NY3d 999 [2017]; see People v Davis, 144 AD3d1188, 1189-1190 [2016], lv denied 28 NY3d 1144 [2017]). Accordingly, we discernno error in the admission of the proffered evidence.
We reach a similar conclusion in rejecting defendant's assertion that County Court abused itsdiscretion in fashioning its Sandoval compromise, as our review of the record reveals thatthe court properly balanced defendant's right to a fair trial against the People's right to impeachdefendant's credibility based upon two of his prior 2004 convictions—had he elected totestify (see People v Sandoval, 34 NY2d 371, 374 [1974]; People v Bateman, 124 AD3d 983,985 [2015], lv denied 25 NY3d 949 [2015]).[FN1] Contrary to defendant's contentions, remotenessin time does not automatically necessitate preclusion of prior convictions (see People v Martin, 136 AD3d1218, 1219 [2016], lv denied 28 NY3d 972 [2016]; People v Wilson, 78 AD3d 1213,1215 [2010], lv denied 16 NY3d 747 [2011]). Here, County Court limited any potentialprejudice by restricting the scope of inquiry to only the date, title of the crime and conviction,while excluding the underlying facts—specifically, that defendant committed forgery inthe second degree while he was processed for arrest and false personation during the execution ofan arrest warrant. In light of the restrictions placed upon the use of the 2004 convictions, weremain unpersuaded that the court abused its discretion (see People v Ramos, 133 AD3d 904, 908 [2015], lv denied26 NY3d 1149 [2016]; People vAlnutt, 101 AD3d 1461, 1463-1464 [2012], lv denied 21 NY3d 941 [2013],cert denied 571 US &mdash, 134 S Ct 1035 [2014]).
Nor are we persuaded by defendant's contention that County Court erred in refusing tosuppress inculpatory statements that he made to two officers from the Village of Johnson CityPolice Department while he was incarcerated in Pennsylvania on an unrelated drugcharge.[FN2] Defendantcontends that his right to counsel was violated because the police failed to make a reasonableinquiry with respect to his representational status for his outstanding parole violation in NewYork. However, "the issuance of a parole violation warrant does not constitute thecommencement of a criminal proceeding to which the indelible right to counsel attaches" (People v Baxter, 140 AD3d 1180,1181 [2016], lv denied 29 NY3d 946 [2017]; see People v Pelkey, 294 AD2d669, 670 [2002], lv denied 98 NY2d 771 [2002]; cf. People v Frankos, 110 AD2d713, 713 [1985]). Additionally, the police confirmed that no charges had yet been filed in theinstant matter, and a valid written Miranda waiver was secured from defendant before[*4]questioning commenced. As such, we find that it waspermissible for the police to question defendant with respect to the underlying crimes for whichhe had not yet been charged (see Peoplev Guzman, 147 AD3d 1450, 1451-1452 [2017], lv denied 29 NY3d 1032[2017]; People v Hooks, 71 AD3d1184, 1185 [2010]; People v Ferringer, 120 AD2d 101, 106-107 [1986]).
We next address defendant's assertion that County Court should have suppressed theevidence of his pretrial lineup identification by the victim's cousin on the ground that it wastainted by her prior viewings of still photographs created from the Xtra Mart surveillance video.On the night of the shooting, December 19, 2010, the victim's cousin informed police that theshooter was the same male whom she and the victim drove to the Xtra Mart two days earlier;however, the morning after the shooting, she was unable to select defendant out of a photo array.On September 24, 2011, during a police interview, and thereafter, on February 12, 2012, duringher grand jury testimony, the victim's cousin was presented with still photographs from thesurveillance video and identified the male in the photographs as both the same individual whomshe met two days prior to the shooting during the drive to the Xtra Mart and as the shooter. Here,the victim's cousin was simply ratifying the events that occurred two days prior to the shooting asrevealed in the surveillance stills, without identifying any known individual as the shooter. Assuch, we are satisfied that, notwithstanding the failure of the victim's cousin to select defendantfrom the photo array, there was an independent basis for the identification due to her proximity todefendant during both encounters. Additionally, the credibility of the identification was fullyexplored during cross-examination at trial (see People v Choi, 137 AD3d 808, 808 [2016], lv denied 27NY3d 1130 [2016]; People v Smith,122 AD3d 1162, 1164 [2014]; People v Staccio, 187 AD2d 755, 756 [1992]).
Defendant's remaining arguments, including those raised in his pro se brief, do not warrantextended discussion. Defendant's challenge to the legal sufficiency of the evidence "isunpreserved for our review inasmuch as he presented evidence after his unsuccessful motion todismiss and failed to renew that motion at the close of all proof" (People v Chirse, 146 AD3d 1031,1032 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 947[2017]; see People v Lane, 7 NY3d888, 889 [2006]; People vRace, 78 AD3d 1217, 1219 [2010], lv denied 16 NY3d 835 [2011]). To theextent that defendant now challenges the honesty of the People's witnesses with respect to hisidentity as the perpetrator of these crimes, such credibility issues were fully explored at trialduring cross-examination and, upon a review of the record, there is no reason for us to disturb thejury's resolution of those issues (seePeople v Tunstall, 149 AD3d 1249, 1252 [2017]; People v Callicut, 101 AD3d 1256, 1259-1260 [2012], lvdenied 20 NY3d 1096 [2013]).
As to defendant's claim of ineffective assistance of counsel, "[t]he test is reasonablecompetence, not perfect representation, and so long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation, the constitutional requirement willhave been met" (People v Kalina,149 AD3d 1264, 1267 [2017] [internal quotation marks, brackets and citations omitted]; see People v Criss, 151 AD3d1275, 1280 [2017]). Here, defense counsel engaged in appropriate pretrial motion practice,participated in Wade, Sandoval and Huntley hearings, made cogentopening and closing statements, cross-examined the People's witnesses and advanced a plausibledefense—namely, that the identification procedures and witnesses were incredible. Assuch, the record reflects that defendant received meaningful representation (see People v Thorpe, 141 AD3d927, 935 [2016], lv denied 28 NY3d 1031 [2016]; People v Griffin, 128 AD3d 1218,1220 [2015], lv denied 27 NY3d 998 [2016]). Finally, in view of defendant's criminalhistory and the nature of his [*5]present crimes, for which heexpressed no remorse,[FN3]we reject his claim that County Court's imposition of the maximum sentence was harsh andexcessive (see People v Burnell, 89 AD3d at 1122; People v Hansen, 290 AD2d47, 57 [2002], affd 99 NY2d 339 [2003]). Defendant's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Lynch, Devine, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant did not object to thecompromise rulings regarding his convictions in 2005, 2006 and 2007, nor does he challenge anyof these Sandoval rulings on appeal.
Footnote 2:Defendant concedes that CountyCourt was correct in finding that the police made reasonable inquiries concerning hisrepresentational status with respect to the Pennsylvania drug charge. As such, defendantacknowledges that his right to counsel did not attach "by virtue" of the Pennsylvania charge.
Footnote 3:"I don't even care. I don't have noremorse. Nobody have no remorse for my life."