| People v Burton |
| 2018 NY Slip Op 01995 [159 AD3d 550] |
| March 22, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Duwayne Burton, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J. and Mark Dwyer, J. atjury trial; Charles H. Solomon, J. at sentencing), rendered October 20, 2015, convictingdefendant of murder in the second degree, burglary in the first degree and attempted robbery inthe first degree, and sentencing him to an aggregate term of 20 years to life, unanimouslyaffirmed.
The verdict was supported by legally sufficient evidence, and was not against the weight ofthe evidence (People v Danielson, 9NY3d 342, 349 [2007]). Moreover, we find that the evidence was overwhelming. There isno basis for disturbing the jury's credibility determinations. The cell phone records andsurveillance videotapes in evidence went far beyond placing defendant at the scene of the crime.Instead, they were so harmonious with the accomplices' narrative that they exceeded the legalrequirement of corroboration (seePeople v Davis, 28 NY3d 294, 303 [2016]; People v Reome, 15 NY3d 188, 191-195 [2010]), and providedcompelling evidence of guilt when taken together with the accomplice testimony.
The court presiding over the initial portions of the trial, and the substitute justice presidingover the latter portions (when the first justice became unavailable), both properly denieddefendant's application to impeach his own witness with a prior inconsistent statement. Thewitness's trial testimony did not tend to disprove or affirmatively damage the defense, but ratherwas only neutral or unhelpful (see CPL 60.35; People v Fitzpatrick, 40 NY2d 44,51-52 [1976]). The witness's out-of-court statement and trial testimony were essentially similar,and both supported the defense theory, even if the prior version was more helpful. In any event,any error in excluding this impeachment was harmless, in light of the overwhelming evidence ofguilt and the fact that the prior statement would only have been admissible for impeachmentpurposes and not as evidence in chief. Furthermore, we find that defendant was not deprived ofhis constitutional right to present a defense (see Crane v Kentucky, 476 US 683, 689-690[1986]).
The first trial court also properly allowed the People to introduce the accomplices' statementsto the police in order to rebut defendant's claim of recent fabrication. During trial, defendantattacked the accomplices' credibility by showing that their cooperation agreements motivatedthem to falsify their testimony. However, the prior consistent statements predated that particularmotive to falsify (see People vFlowers, 83 AD3d 524 [1st Dept 2011], lv denied 17 NY3d 795 [2011], certdenied 565 US 1017 [2011]). To the extent defendant argues that they had a motive tofabricate because at the time they made the statement they were suspected of involvement in thecrime, there is no requirement that, to be admissible, a prior consistent statement predate allpossible motives to falsify (see People v McClean, 69 NY2d 426, 430 [1987]; Peoplev Baker, 23 NY2d 307, 322-323 [1968]). Furthermore, any error here was also harmless.
With regard to defendant's remaining claims of evidentiary error and/or prosecutorialmisconduct, we find nothing so egregious as to deprive defendant of a fair trial, and that any[*2]errors were likewise harmless.
Defendant's claim of ineffective assistance of counsel at sentencing is unreviewable on directappeal, because it involves matters not fully explained by the record. Alternatively, on theexisting record, to the extent it permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Webber, Oing,Moulton, JJ.