| People v Murray |
| 2017 NY Slip Op 07642 [155 AD3d 1106] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v KareemMurray, Appellant. |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered June 22, 2015, upon a verdict convicting defendant of the crimes of murder in thesecond degree, conspiracy in the second degree, criminal possession of a weapon in the seconddegree (two counts) and criminal possession of a controlled substance in the second degree.
As defendant and the codefendant, his uncle, were being investigated through eavesdroppingwarrants and surveillance for drug-related crimes, law enforcement officials learned thatdefendant was targeting an individual who defendant believed was involved in the rape of hisgirlfriend. After the victim was shot and killed, defendant and the codefendant were detained in atraffic stop and subsequently arrested. A search of the codefendant's vehicle revealed loadedhandguns, ammunition and narcotics. Defendant was charged in a multicount indictment inconnection with the shooting of the victim, as well as his possession of the handguns andcontrolled substances. Following a joint jury trial with the codefendant, defendant was convictedof murder in the second degree, conspiracy in the second degree, two counts of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe second degree.[FN1]County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 39years to life in prison, followed by five years of postrelease supervision. Defendant now appeals.We affirm.
Turning first to defendant's claim that the evidence procured from the eavesdropping warrantshould have been suppressed, we reject defendant's contention that probable cause was lackingfor the eavesdropping warrant to be issued (see People v Williams, 138 AD3d 1233, 1236-1237 [2016], lvdenied 28 NY3d 939 [2016]; Peoplev Alnutt, 107 AD3d 1139, 1141 [2013], lv denied 22 NY3d 1136 [2014]).Furthermore, contrary to defendant's assertion, the eavesdropping warrant was properly issuedinasmuch as the People sufficiently established that normal investigative procedures wereunavailable. The application for the eavesdropping warrant was supported by, among otherthings, an affidavit of an investigator with the State Police Bureau of Criminal Investigation, whoaverred that other procedures, such as physical surveillance, use of confidential informants,traffic stops, search warrants or interviews with known associates of defendant would not likelysucceed in aiding the investigation. Given that the eavesdropping warrant application compliedwith the requirements of CPL article 700, County Court properly denied defendant's motionseeking suppression of evidence obtained through the eavesdropping warrant (see People v Anderson, 149 AD3d1407, 1409 [2017], lv denied 30 NY3d 947 [2017]; People v Brown, 233 AD2d 764, 765-766 [1996], lv denied89 NY2d 1009 [1997]; People v Baker, 174 AD2d 815, 817 [1991], lv denied 78NY2d 920 [1991]).
Defendant also challenges County Court's suppression ruling regarding the weapons,ammunition and drugs seized from a vehicle registered to the codefendant. County Courtcorrectly determined that defendant did not have standing to contest the search of the vehiclebecause defendant did not have a legitimate expectation of privacy over such vehicle (see People v Anderson, 118 AD3d1137, 1138 [2014], lv denied 24 NY3d 1000 [2014]). It is undisputed that defendantwas not the registered owner of the vehicle. In addition, there was no evidence demonstratingthat defendant had the right to exclude others from the vehicle or had some possessory interest init (see generally People v Rodriguez, 69 NY2d 159, 162 [1987]). Under thesecircumstances, we find that defendant lacked standing (see People v Laws, 208 AD2d317, 321-322 [1995]; People v Williams, 90 AD2d 642, 643 [1982]; see generallyPeople v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]).[FN2]
We reject defendant's assertion that the admission of a redacted recording of thecodefendant's interview with the police violated his right to confront witnesses. During suchinterview, defendant was not named by the codefendant, nor was he otherwise implicated in anywrongdoing by the codefendant's statements (see People v Maschio, 117 AD3d 1234, 1235 [2014]; People v Pagan, 87 AD3d 1181,1184-1185 [2011], lv denied 18 NY3d 885 [2012]). Furthermore, County Courtinstructed the jury that the recorded police interview should be considered as evidence onlyagainst the codefendant (see People vThompson, 147 AD3d 1298, 1300-1301 [2017], lv denied 29 NY3d 1037[2017]). As such, we conclude that there was no violation of defendant's right to confrontwitnesses.
Regarding defendant's motion for a separate trial, we find no abuse of discretion in CountyCourt's denial of such motion. Upon a showing of good cause, a court may order separate trials(see CPL 200.40 [1] [d] [iii]; People v Middleton, 192 AD2d 740, 742 [1993],lv denied 83 NY2d 913 [1994]). "[S]everance is compelled where the core of eachdefense is in irreconcilable conflict with the other and where there is a significant danger, as bothdefenses are portrayed to the trial court, that the conflict alone would lead the jury to inferdefendant's guilt" (People v Mahboubian, 74 NY2d 174, 184 [1989]). Defendant relies onthe statements made in the redacted video interview of the codefendant as a basis for severancebut, as discussed, such statements did not implicate defendant. Furthermore, contrary todefendant's claim, the codefendant's counsel did not act as a second prosecutor inasmuch as thetestimony elicited during cross-examination of certain witnesses did not reveal any newinformation that was not already provided on direct examination of such witnesses (see People v Wilson, 120 AD3d1531, 1533 [2014], affd 28 NY3d 67 [2016]; compare People v Forbes, 203AD2d 609, 612 [1994]). Also, the opening and closing statements by the codefendant's counseldid not expressly place any blame on defendant but, instead, emphasized the lack of directevidence pointing to the codefendant's guilt. Although defendant correctly notes that thecodefendant would not be bound by County Court's Sandoval ruling (see People vMcGee, 68 NY2d 328, 333 [1986]), given that defendant and the codefendant were chargedwith similar crimes and the People used the same evidence against them, such fact does notcompel separate trials (see People v Hernandez, 260 AD2d 399, 400 [1999], lvdenied 93 NY2d 925 [1999]). Indeed, "[w]here the proof against both defendants is suppliedto a great extent by the same evidence, only the most cogent reasons warrant a severance" (People v Minor, 129 AD3d 1337,1339 [2015] [internal quotation marks and citation omitted], lv denied 27 NY3d 1003[2016]; see People v Dickson, 21AD3d 646, 647 [2005]; People v Hope, 186 AD2d 872, 874 [1992], lvdenied 80 NY2d 1027 [1992]). In the absence of such cogent reasons and taking into accountthe strong public policy in favor of joint trials (see People v Mahboubian, 74 NY2d at184), we cannot say that County Court abused its discretion in denying defendant's motion for aseparate trial (see People v Cordato,85 AD3d 1304, 1308-1309 [2011], lv denied 17 NY3d 815 [2011]; People vMelendez, 285 AD2d 819, 822 [2001], lvs denied 97 NY2d 708, 731 [2002]).
Defendant further argues that County Court's reverse Batson ruling concerning twomale jurors was erroneous. During jury selection, the People objected to defendant's peremptorychallenge with respect to juror No. 5 on the basis that he was the "eighth straight male that thedefense has excused for a peremptory." County Court noted that juror No. 5 was the "eighth malethat [defendant has] challenged peremptorily" and requested a gender-neutral reason. Defensecounsel responded that his challenge of juror No. 5 was based on his conservative backgroundand "his dealing with Plug Power and that type of corporation, when he hears expert testimony,that he would automatically side for testimony regarding forensic, regarding DNA, regarding alab in general." The codefendant's counsel added that juror No. 5's "[b]ody language wasextremely troubling. He appeared to be shaking his head."[FN3] With respect to juror No. 17, the codefendant'scounsel had "concerns about his experience in Greene County that he spoke about, [f]ederal[g]overnment employee" and explained that "he appears to fit the profile of aconservative-prosecution vote." The People responded that defendant has "agreed to keep onemale out of 11" and that it was "disproportionate with the males." In granting the People'sBatson objection, County Court stated, "I believe that [defendant is] excluding males and. . . [has] shown a pattern."
As relevant here, we agree with defendant that he satisfied the second step of theBatson analysis by providing gender-neutral reasons for his peremptory challenges onjuror Nos. 5 and 17 (cf. People v Payne, 88 NY2d 172, 186 [1996]; People v Green, 141 AD3d 1036,1040 [2016], lv denied 28 NY3d 1072 [2016]; People v Murphy, 79 AD3d 1451, 1452 [2010], lv denied16 NY3d 862 [2011]). Nevertheless, even though it appears that County Court effectivelycompressed steps two and three of the Batson test, the court's consideration of pretext canbe inferred from the record (see People v Payne, 88 NY2d at 185; People v Cajigas, 82 AD3d 544,545 [2011], affd 19 NY3d 697 [2012]). We note that, while both parties and the courtbear a responsibility to ensure the development of an adequate record, "[w]hen [t]rial [j]udges aresatisfied . . . that unlawful discrimination has been employed by either side, thereshould be no artificial procedural barriers to their taking firm and prompt action" (People vPayne, 88 NY2d at 184). Accordingly, it is unnecessary to remit the matter for furtherproceedings (see e.g. People vQuiles, 74 AD3d 1241, 1244 [2010]; People v Starks, 234 AD2d 861, 862[1996]) or order a new trial (see e.g.People v Grafton, 132 AD3d 1065, 1067-1068 [2015], lv denied 26 NY3d 1145[2016]).
Regarding defendant's challenge to County Court's Molineux ruling, which permittedthe People to admit evidence of a prior shooting incident, such claim is unpreserved for ourreview in light of defendant's failure to advance a specific argument at the combinedSandoval-Molineux hearing regarding the admissibility or prejudicial effect of the priorshooting incident (see People vTyrell, 82 AD3d 1352, 1355 [2011], lv denied 17 NY3d 810 [2011]). In anyevent, we find no error in County Court's Molineux determination (see People v Portis, 129 AD3d1300, 1302-1303 [2015], lv denied 26 NY3d 1091 [2015]). Defendant alsoacknowledges that his counsel failed to request a Molineux limiting instruction, and weconclude that such failure, by itself, does not amount to ineffective assistance of counsel (see People v Cox, 129 AD3d1210, 1214 [2015], lv denied 26 NY3d 966 [2015]).
Finally, defendant contends that the sentence of 14 years imposed for his conviction ofcriminal possession of a controlled substance in the second degree, which was ordered to runconsecutively to the sentences imposed for the other convictions, was harsh and excessive. Wedisagree. Given defendant's prior drug-related convictions and his lack of remorse for his actions,we discern no abuse of discretion or extraordinary circumstances warranting the reduction of thissentence in the interest of justice (seePeople v Slaughter, 150 AD3d 1415, 1418 [2017]; People v Jordan, 148 AD3d 1461, 1463 [2017]). To the extent notspecifically addressed herein, defendant's remaining arguments, including those raised in his prose supplemental brief, have been examined and are without merit.
Garry, J.P., Egan Jr., Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The codefendant was convictedof the same charges.
Footnote 2:Even if defendant had standing,based upon our review of the record, we are satisfied that the warrant obtained to search thecodefendant's vehicle was supported by probable cause (see People v Cherry, 149 AD3d 1346, 1347-1348 [2017], lvdenied 29 NY3d 1124 [2017]; People v Dawson, 110 AD3d 1350, 1351 [2013], lv denied23 NY3d 1035 [2014]).
Footnote 3:Defendant and the codefendantwere required to agree on their use of peremptory challenges.