| People v White |
| 2017 NY Slip Op 06735 [153 AD3d 1565] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vQuinntarius White, Appellant. |
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedSeptember 15, 2010. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was arrested in 2003 and charged with two counts of murder in thesecond degree (Penal Law § 125.25 [1] [intentional murder], [2] [depravedindifference murder]). He was originally convicted upon his guilty plea of depraved indifferencemurder, and was sentenced to an indeterminate term of imprisonment of 15 years to life. On aprior appeal, this Court concluded, under the then-evolving case law applicable to that crime (see People v Gonzalez, 1 NY3d464, 467-468 [2004]), that the factual allocution failed to establish that defendant actedrecklessly or with depraved indifference, and we therefore reversed the judgment, vacated theplea, and remitted the matter to County Court for further proceedings on the indictment (People v White, 70 AD3d 1343[2010], lv denied 14 NY3d 894 [2010]). Upon remittal, defendant was offered a pleabargain on the intentional murder charge with the same sentence as that previously imposed, butthe matter proceeded to trial when he indicated that he did not shoot the victim and was notpresent when the crime occurred. Defendant now appeals from a judgment convicting him upon ajury verdict of intentional murder.
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to establish his guilt as an accomplice because the People were bound by the doctrineof collateral estoppel to accept that the codefendant, who pleaded guilty to depraved indifferencemurder (Penal Law § 125.25 [2]), did not intend to kill the victim (see CPL470.05 [2]). In any event, that contention is without merit. Defendant was charged as a principaland an accomplice and, regardless of the evidence of accomplice liability, the evidence is legallysufficient to establish defendant's liability as a principal (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
We reject the contention of defendant that, in view of his justification defense, the verdict isagainst the weight of the evidence (see People v Cook, 270 AD2d 915, 916 [2000], lvdenied 95 NY2d 795 [2000]; People v White, 168 AD2d 962, 963 [1990], lvdenied 77 NY2d 968 [1991]; seealso People v Johnson, 103 AD3d 1226, 1226-1227 [2013], lv denied 21 NY3d944 [2013]). The jury's credibility assessments are entitled to great deference, and it cannot besaid here that the jury failed to give the evidence the weight it should be accorded (seegenerally Bleakley, 69 NY2d at 495).
Defendant further contends that the court abused its discretion in admitting in evidencephotographs of the victim's body because, although they concededly were relevant, they werehighly prejudicial. We reject that contention (see People v Pobliner, 32 NY2d 356,369-370 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US 905[1974]; People v Payton, 147 AD3d1354, 1354 [2017]). Furthermore, "the trial court balanced the photographs' probative valueagainst their potential for prejudice by limiting the number of photographs admitted" in evidence(People v Llamas, 186 AD2d 685, 686 [1992], lv denied 81 NY2d 842 [1993]),and "the court issued prompt instructions that the jury avoid emotion when viewing the exhibits"(People v Timmons, 78 AD3d1241, 1245 [2010], lv denied 16 NY3d 837 [2011]; see People v Francis, 83 AD3d1119, 1122 [2011], lv denied 17 NY3d 806 [2011]). Contrary to defendant'scontention, "[t]he People were not bound to rely entirely on the testimony of the medical expertto prove [defendant's intent] and the photographs were admissible to elucidate and corroboratethat testimony" (People v Stevens, 76 NY2d 833, 836 [1990]).
We reject defendant's contention that the longer sentence imposed after his successful appealfrom the prior judgment of conviction is a vindictive punishment for exercising his right toappeal. "It is a well-settled principle that criminal defendants should not be penalized forexercising their right to appeal. To punish a person because he [or she] has done what the lawplainly allows him [or her] to do is a due process violation of the most basic sort . . .In order to insure that trial courts do not impose longer sentences to punish defendants for takingan appeal, a presumption of vindictiveness generally arises when defendants who have wonappellate reversals are given greater sentences after their retrials than were imposed after theirinitial convictions" (People v Young, 94 NY2d 171, 176 [1999], rearg denied 94NY2d 876 [2000] [internal quotation marks omitted]), regardless of whether the prior convictionwas by plea or trial (see e.g. People v Miller, 103 AD2d 808, 809 [1984], affd 65NY2d 502 [1985], cert denied 474 US 951 [1985]; cf. Alabama v Smith, 490 US794, 799-803 [1989]). Nevertheless, "[i]t is . . . no more than a presumption andmay be overcome by evidence that the higher sentence rests upon a legitimate and reasonedbasis" (Miller, 65 NY2d at 508).
Here, in originally pleading guilty to the depraved indifference murder charge, defendantstated during the plea colloquy that he and a codefendant "searched for the victim and, uponlocating him, shot him at close range. Defendant also stated that he fired at the victim"(White, 70 AD3d at 1343). Nevertheless, during the interview that was conducted by aprobation officer who prepared the presentence report after the postappeal trial on the intentionalmurder charge, defendant "emphasized that he had not intended to shoot the victim," and he toldthe court at the postappeal sentencing proceeding that he "wanted to just talk to [the victim] andthat was that. [He] didn't mean for any of this to happen at all." It is well settled that a defendant'sfailure to accept responsibility for his or her actions is a factor upon which the court may rely inimposing sentence (see e.g. People vSimcoe, 75 AD3d 1107, 1109 [2010], lv denied 15 NY3d 924 [2010]), andindeed the court in the case before us specifically noted in imposing sentence that defendant was"not taking responsibility. I believe that can be taken into consideration and differs from whatoccurred back in 2004." Thus, the "presumption [of vindictiveness] was rebutted by thesentencing court, which affirmatively placed on the record 'objective information concerningidentifiable conduct on the part of the defendant occurring after the time of the originalsentencing proceeding,' such as his . . . lack of genuine remorse" (People v Ocampo, 52 AD3d 741,742 [2008], lv denied 11 NY3d 792 [2008]; see People v Casanova, 152 AD3d 875, 879-880 [2017]).
In addition, the increased sentence is justified by "defendant's election, after his successfulappeal, of a jury trial which imposed upon the victim['s family] the trauma of publicly relivingthe events of the attack. The Supreme Court has recognized . . . 'that, once the slateis wiped clean and the prosecution begins anew, a fresh sentence may be higher for some validreason associated with the need for flexibility and discretion in the sentencing process' "(Miller, 65 NY2d at 509). Here, the court initially agreed to exercise its discretion toimpose a lesser sentence upon defendant's plea of guilty in order, inter alia, to bring closure to thevictim's family and obviate the need for them to relive the gruesome events of the victim's death.Having rejected a plea upon remittal and chosen to exercise his right to a trial, defendant "shouldnot be heard to complain that a higher sentence is imposed after conviction" because, byexercising his right to a trial in which those events were described in detail, "he has removedfrom consideration the element of discretion involved" (id.).
Finally, defendant contends that the sentence is unduly harsh and severe. Contrary to thePeople's contention, and as we have previously noted, it is well settled that this Court's"sentence-review power may be exercised, if the interest of justice warrants, without deference tothe sentencing court" (People v Delgado, 80 NY2d 780, 783 [1992]), and that "we may'substitute our own discretion for that of a trial court which has not abused its discretion in theimposition of a sentence' " (People v Johnson, 136 AD3d 1417, 1418 [2016], lv denied27 NY3d 1134 [2016]). Nevertheless, we conclude that the term of incarceration is notunduly harsh or severe. Present—Whalen, P.J., Smith, Centra, Peradotto and Carni,JJ.