| People v Everson |
| 2018 NY Slip Op 00714 [158 AD3d 1119] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Shawndell Everson, Appellant. (Appeal No.1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
Shawndell Everson, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMarch 2, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa weapon in the second degree (three counts), criminal possession of a weapon in the third degree(five counts), criminal sale of a firearm in the third degree (four counts), criminal possession of acontrolled substance in the fifth degree (two counts), criminal sale of a controlled substance inthe fifth degree (two counts), robbery in the first degree (two counts), burglary in the first degreeand conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of two counts of robbery in the first degree (Penal Law § 160.15 [4]),one count each of burglary in the first degree (§ 140.30 [4]) and conspiracy in thefourth degree (§ 105.10 [1]), and various other charges arising from the possessionor sale of drugs and weapons. In appeal No. 2, defendant appeals from an order denying hismotion to vacate the judgment of conviction pursuant to CPL 440.10.
Addressing appeal No. 1 first, we note that defendant was originally charged in threeindictments that were later consolidated with crimes arising from eight separate incidents thatoccurred between November 2008 and April 2010.
We reject defendant's contention in his main brief that County Court lacked jurisdiction withrespect to counts one through three of the consolidated indictment, charging crimes arising fromdefendant's possession and sale of a pistol that he acquired in the State of Ohio. The Peopleestablished territorial jurisdiction within New York (see CPL 20.20 [1] [a], [c]). To theextent that defendant challenges venue in Onondaga County with respect to counts one throughthree, we also reject that challenge. Although defendant and his companions were stopped on theThruway before they returned to Onondaga County from Ohio, defendant was properly tried inOnondaga County, inasmuch as "[c]onduct occurred in such county sufficient to establish. . . [a]n attempt or a conspiracy to commit such offense[s]" (CPL 20.40 [1] [b]),i.e., the People established that, while in Onondaga County, defendant conspired with others totraffic weapons (see People vMacDonald, 63 AD3d 1520, 1521 [4th Dept 2009], lv denied 13 NY3d 746[2009]).
The evidence, viewed in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), is legally sufficient to support defendant's conviction of counts onethrough six (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition,viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict on those counts and the remaining counts isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention in his main brief that theconspiracy count was defective on the grounds that it alleged that defendant participated inmultiple conspiracies (see generallyPeople v Alfonso, 35 AD3d 269, 269 [1st Dept 2006], lv denied 8 NY3d 878[2007]), and it failed to specify the underlying crimes that were the objects of the allegedconspiracies (see generally People v Wong, 133 AD2d 184, 185 [2d Dept 1987], lvdenied 70 NY2d 878 [1987]). We decline to exercise our power to review that contention asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's further contention in his main brief, the court properly concluded thata CPL 710.30 notice was not required with respect to statements that defendant made to anaccomplice concerning the commission of a robbery. Those statements were made during aprivate conversation between defendant and the accomplice, and there was no evidence that, atthe time of that conversation, the accomplice "was acting at the instigation or under thesupervision of the police" (People vJean, 13 AD3d 466, 467 [2d Dept 2004], lv denied 5 NY3d 764 [2005],denied upon reconsideration 5 NY3d 807 [2005]).
The record does not support defendant's contention in his main brief that the court refused torule on his midtrial severance motion. Rather, the record establishes that the court's willingnessto consider severance was contingent upon defendant's decision whether to testify, and whendefendant elected not to testify, the motion was "implicitly but conclusively denied" (People v Gates, 152 AD3d 1222,1223 [4th Dept 2017]; see People vHampton, 113 AD3d 1131, 1132 [4th Dept 2014], lv denied 22 NY3d 1199[2014], denied reconsideration 23 NY3d 1062 [2014], cert denied 575 US&mdash, 135 S Ct 2389 [2015]). The court, moreover, properly denied the motion, inasmuch asit was untimely (see CPL 255.20 [1], [3]; People v Wilburn, 50 AD3d 1617, 1618 [4th Dept 2008], lvdenied 11 NY3d 742 [2008]), and defendant failed to demonstrate the requisite good causefor a discretionary severance (see Peoplev Vickers, 148 AD3d 1535, 1536-1537 [4th Dept 2017], lv denied 29 NY3d1088 [2017]).
Contrary to defendant's contention in his main brief, we conclude that the court's instructionsto the jury with respect to counts 9 and 19, each charging criminal sale of a firearm in the thirddegree under Penal Law § 265.11 (1), did not alter the theory of the prosecutionwith respect to those counts (see Peoplev Rivera, 133 AD3d 1255, 1256 [4th Dept 2015], lv denied 27 NY3d 1154[2016]).
The evidence at trial is legally sufficient to establish the predicate conviction supporting theconviction of five counts of criminal possession of a weapon in the third degree (Penal Law§ 265.02 [1]; see generally Bleakley, 69 NY2d at 495). Thus, defendant'schallenge in his main brief to those charges based upon the presentation of erroneous informationto the grand jury concerning the predicate conviction is not reviewable on appeal (seeCPL 210.30 [6]; People vHighsmith, 124 AD3d 1363, 1365 [4th Dept 2015], lv denied 25 NY3d 1202[2015]). The presentation of such erroneous information, moreover, was "not of such magnitude"as to have impaired the integrity of the grand jury and rendered its proceedings defective(People v Carey, 241 AD2d 748, 751 [3d Dept 1997], lv denied 90 NY2d 1010[1997]; see People v Sheltray, 244 AD2d 854, 855 [4th Dept 1997], lv denied 91NY2d 897 [1998]).
Defendant failed to preserve for our review his challenge in his main brief to all but one ofseveral allegedly improper comments made by the prosecutor during summation (seeCPL 470.05 [2]). In any event, we conclude that "[a]ny improprieties were not so pervasive oregregious as to deprive defendant of a fair trial" (People v Cox, 21 AD3d 1361, 1364 [4th Dept 2005], lv denied6 NY3d 753 [2005] [internal quotation marks omitted]).
Contrary to the final contention in defendant's main brief in appeal No. 1, the sentence is notunduly harsh or severe.
Contrary to the contentions in defendant's main and pro se supplemental briefs in both appealNos. 1 and 2, we conclude that defendant was provided meaningful representation at trial (seePeople v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to meet his burden ofdemonstrating the absence of a strategic or other legitimate explanation for defense counsel'salleged shortcomings (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Reed, 151 AD3d 1821,1822 [4th Dept 2017], lv denied 30 NY3d 952 [2017]), including those that were allegedin defendant's CPL article 440 motion.
Addressing the remaining contentions in defendant's pro se supplemental brief in appeal No.1, we conclude that the record does not support his contention that the court improperly deprivedhim of counsel of his choice when it relieved his first assigned attorney (cf. People v Griffin, 92 AD3d 1,5-7 [1st Dept 2011], affd 20 NY3d 626 [2013]; see generally People v Childs,247 AD2d 319, 325 [1st Dept 1998], lv denied 92 NY2d 849 [1998]). Nor does therecord support defendant's contention that he was deprived of a fair trial as the result of thecourt's alleged bias against him (cf.People v Reynolds, 90 AD3d 956, 957 [2d Dept 2011]). We have examined defendant'sremaining contention in his pro se supplemental brief and conclude that it is without merit.
In appeal No. 2, defendant contends in his main brief that his right to a public trial wasviolated when his family members and friends were excluded or removed from the courtroom. Atthe outset, we note that, while the right to a public trial is fundamental (see People v Martin, 16 NY3d607, 611 [2011]), a claim that such right was violated requires preservation (see People v Alvarez, 20 NY3d 75,81 [2012], cert denied 569 US 947 [2013]). Here, none of the alleged violations ofdefendant's right to a public trial was brought to the court's attention at a time when the courtcould have taken remedial action, and thus defendant's contention is not preserved for our review(see id.). We decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Smith, J.P.,Carni, Curran and Winslow, JJ.