| People v Lalonde |
| 2018 NY Slip Op 02360 [160 AD3d 1020] |
| April 5, 2018 |
| Appellate Division, Third Department |
[*1](April 5, 2018)
| The People of the State of New York,Respondent, v Anthony Lalonde, Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant, andappellant pro se.
Gary M. Pasqua, District Attorney, Canton (Lauren D. Konsul, New York State ProsecutorsTraining Institute, Albany, of counsel), for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 8, 2013, upon a verdict convicting defendant of the crimes ofrobbery in the first degree and murder in the second degree, and (2) by permission, from an orderof said court (Champagne, J.), entered November 21, 2016, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
On the evening of November 18, 2010, 83-year-old Russell Lawton (hereinafter the victim)and his 67-year-old roommate, Guy Bartlett, were eating pizza in the kitchen of their sharedsecond-floor apartment at 930 Ford Street in the City of Ogdensburg, St. Lawrence County, whenthree individuals wearing masks, dark clothes and gloves entered their residence and demandedthat the victim turn over his money. While attempting to empty the victim's pockets, one of theintruders tipped over the chair in which the victim was sitting, knocking him to the floor. Bartlettthen scuffled with one of the intruders while attempting to grab hold of a wooden "stick" that theintruders had brought with them and he was also knocked to the ground. Two of the intrudersthen picked Bartlett up, threw him on top of the victim and then left the apartment. Bartlett thenchecked the victim's pulse and, not finding one, called 911. The victim was subsequentlyadministered CPR and thereafter brought to the hospital where he was pronounced dead a shorttime later.
[*2] In June 2012, defendant and twocodefendants were charged by indictment with robbery in the first degree and murder in thesecond degree. Following a joint trial, defendant was convicted as charged; his two codefendantswere acquitted. County Court (Richards, J.) thereafter sentenced defendant to an aggregate prisonterm of 22 years to life. Defendant's subsequent CPL article 440 motion seeking to vacate thejudgment of conviction was denied without a hearing. Defendant now appeals from the judgmentof conviction and, by permission, from the denial of his motion to vacate.
Defendant initially contends that his convictions for robbery in the first degree and murder inthe second degree are against the weight of the evidence. As relevant here, "[a] person is guilty ofrobbery in the first degree when he [or she] forcibly steals property and when, in the course of thecommission of the crime or of immediate flight therefrom, he or [she] . . . [c]ausesserious physical injury to any person who is not a participant in the crime" (Penal Law§ 160.15 [1]). A person is guilty of murder in the second degree based upon afelony murder theory when "he [or she] commits or attempts to commit robbery . . .and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [orshe] . . . causes the death of [another] person" (Penal Law § 125.25[3]; see People v Davis, 28 NY3d294, 300 [2016]; People vChaplin, 134 AD3d 1148, 1151 [2015], lv denied 27 NY3d 1067 [2016]).
With respect to the robbery charge, contrary to defendant's contention, there was ampleevidence presented at trial establishing defendant's presence at and participation in the subjectrobbery. The People presented evidence establishing that, on the day in question, three menentered the victim's apartment wearing black masks and gloves and forcibly stole, among otherthings, two wallets from the victim. The People elicited testimony from numerous witnesses that,earlier that same day, defendant participated in the planning of the robbery while at his brother'shouse and independently attempted to recruit two other individuals to participate in same. VictorGardner, defendant's friend, testified that he was present with defendant at defendant's brother'shouse when the robbery was being planned. While there, Gardner observed defendant leave thehouse with Samantha Mashaw; defendant was carrying black Halloween masks, and both he andMashaw left in Mashaw's vehicle. Gardner testified that, a short time later, defendant's brotherbecame concerned that defendant had not yet returned so they went to look for him, whereuponGardner observed Mashaw's vehicle parked along Denny Street, near an adjacent alley that led tothe victim's apartment. Mashaw testified that, on the day in question, she drove defendant andtwo other individuals to a location along Denny Street and parked along the side of the street; allthree individuals got out of the vehicle, ran around the side of a nearby building and disappeared,returning a few minutes later. Gardner testified that a short time after observing Mashaw'svehicle, defendant's brother received a telephone call, and they subsequently picked up defendantand two other individuals at a nearby residence. After dropping off the two other individuals,defendant, his brother and Gardner drove to the middle of Black Bridge on State Route 37 inOgdensburg, whereupon defendant exited the vehicle and threw a hat, two wallets and one gloveover the side of the bridge into the river below.
Detective Sergeant Robert Wescott testified that, during the subsequent investigation of therobbery, a black glove was discovered on a chair in the dining room of the victim's apartment.Bartlett testified that it was the intruder that was going through the victim's pockets who removedhis glove and left it behind. Deputy Sheriff Andrew Ashley, a K-9 officer with the St. LawrenceCounty Sheriff's Office, testified that his K-9 dog used the glove to gain a scent and proceeded totrack the scent down the stairwell of the victim's apartment and around the back of the apartmentbuilding to a location along Denny Street. Wescott testified that the following day he and anotherofficer retraced the path that the K-9 dog had tracked the night before. Wescott indicated that,upon reaching Denny Street, they discovered a small wooden axe handle in a grassy area [*3]between the sidewalk and the street. A DNA test was subsequentlyperformed on, among other things, the glove and the axe handle. The DNA test of the gloverevealed a mixture profile of DNA on the inside thereof. The forensic scientist who performedthe DNA test testified that defendant could not be excluded as a possible contributor to the DNAprofile found in the glove.[FN1] She further opined that the probability of anindividual being randomly included in the subject DNA mixture was approximately 1 in 51.23million. The forensic scientist also indicated that she collected a hair from the handle of the axe.A subsequent DNA test revealed that the hair belonged to Bartlett.
Westcott also testified that he participated in two separate interviews of defendant. Althoughdefendant initially denied ever having been inside the victim's apartment, he later offered severalcontradictory explanations for how his DNA might have been present therein.[FN2] Defendant also initially deniedever having planned a robbery at the victim's apartment; however, he later indicated that he hadparticipated in planning the robbery the day prior to the incident and that he thereafter attemptedto get a third party to commit same instead of himself. The People also elicited testimony fromShawn McGregor, an inmate, who indicated that he spoke with defendant about the robberywhile defendant was incarcerated pending trial. McGregor testified that defendant admitted hisparticipation in the robbery, including the fact that he was concerned that he had left a glovebehind at the scene that might contain his DNA. Wescott, meanwhile, testified that noinformation regarding the glove or DNA was ever released to the public during the course of thisinvestigation. Based on the foregoing, we find that the evidence established defendant'sparticipation in the robbery (see Peoplev Griffin, 122 AD3d 1068, 1069-1070 [2014], lv denied 25 NY3d 1164 [2015];People v Dearmas, 48 AD3d1226, 1228 [2008], lv denied 10 NY3d 839 [2008]).
We likewise find unavailing defendant's contention that the People failed to prove that thevictim suffered a serious physical injury (see Penal Law § 160.15 [1]) or,relatedly, that the victim's death was not directly caused by the conduct of the three intrudersduring the course of the robbery (see Penal Law § 125.25 [3]). Seriousphysical injury is defined as a "physical injury which creates a substantial risk of death, or whichcauses death or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). Further, in order for defendant to be found criminally liable for thevictim's death based on a felony murder theory, "defendant's actions [*4]must have been an actual contributory cause of death, in the sensethat [he] 'forged a link in the chain of causes which actually brought about the death' "(Matter of Anthony M., 63 NY2d 270, 280 [1984], quoting People v Stewart, 40NY2d 692, 697 [1976]) and that the fatal result was reasonably foreseeable (see People vDavis, 28 NY3d at 300; People v Hernandez, 82 NY2d 309, 314 [1993]; see alsoPeople v Matos, 83 NY2d 509, 511 [1994]). Moreover, as long as the "necessary causativelink is established, other causes, such as a victim's preexisting condition, will not relieve thedefendant of responsibility for homicide" (Matter of Anthony M., 63 NY2d at 280;accord People v Davis, 28 NY3d at 300; see People v Snow, 79 AD3d 1252, 1253-1254 [2010], lvdenied 16 NY3d 800 [2011]).
The evidence established that, after entering the victim's apartment and demanding that heturn over his money, one of the intruders flipped over the victim's chair, knocking him to thefloor. Bartlett was also knocked out of his chair onto the floor, and two of the intruders thereafterthrew him on top of the victim. Samuel Livingstone, a coroner's physician, testified that heperformed an autopsy on the victim. Livingstone opined that the victim's death was the result ofan internal hemorrhage caused by a ruptured aortic aneurysm that effectively caused the victim tobleed to death. Livingstone opined that, although the victim's aneurysm had been present foryears, the victim's blood pressure was elevated as a result of the intruders' unexpected andunannounced entry into the apartment, and the aortic aneurysm ruptured due to the blunt forcetrauma that occurred when he fell to the ground and/or when his roommate was subsequentlythrown on top of him. Livingstone opined that, upon the rupture of the aortic aneurysm, thevictim would have become unresponsive within a matter of minutes.
Tara Moncrief testified that she arrived at the victim's apartment simultaneously as the threemasked intruders were exiting same. When Moncrief entered the victim's apartment, she saw himon the floor and, upon observing that he had stopped breathing, attempted to perform CPR.Moncrief acknowledged that she was under the influence of muscle relaxers and did not knowexactly how to perform CPR, but she testified unequivocally that she only performed two chestpumps on the victim's sternum by the time the paramedics arrived on scene. Defendant contendsthat Moncrief's performance of CPR on the victim was the sole cause attributable to the ruptureof the victim's aortic aneurysm and, as a result, was an intervening cause that served to break thecausative link between his and his codefendants' conduct. Defendant, however, offered no proof,medical or otherwise, to support such a theory (compare Matter of Anthony M., 63 NY2dat 280; People v Kane, 213 NY 260, 270 [1915]). Moreover, on cross-examination,Livingstone rejected defendant's theory, opining that chest compressions applied to the victim'smid-chest during CPR (i.e., Moncrief's attempt at CPR) would not have caused a correspondingincrease in pressure on the victim's abdomen so as to cause the victim's aortic aneurysm torupture. In fact, Livingstone opined that, had the aortic aneurysm not already ruptured, therewould have been no need to administer CPR in the first instance, because the autopsy revealedthat the victim had no other injuries that would have caused him to lose consciousness orotherwise caused his heart to stop beating. Livingstone's unchallenged medicalopinion,[FN3] coupled withBartlett's testimony as to the intruders' violent actions and the nearly immediate consequencesthereof, culminating in the victim's death, established the requisite causative link betweendefendant's participation in the robbery and the victim's death (see People v Davis, 28NY3d at 301; People v DaCosta, 6NY3d 181, 185 [2006]).
With regard to foreseeability, given the stress induced by three intruders entering his [*5]apartment and forcibly stealing his property, the violent nature ofthe manner in which he was knocked to the floor and his roommate's body thrown on top of him,the evidence adduced at trial supports the jury's conclusion that the 83-year-old victim's death"was a directly foreseeable consequence of defendant's conduct" (People v Davis, 28NY3d at 302; see People v Matos, 83 NY2d at 511-512). Accordingly, upon our reviewof the record, viewing the evidence in a neutral light and according due deference to the jury'scredibility assessments, we are satisfied that defendant's convictions for robbery in the firstdegree and murder in the second degree are not against the weight of the evidence. Additionally,based on the seriousness of the offenses committed and given defendant's failure to take anyresponsibility for the fact that his criminal conduct led directly to the death of the victim, we findno abuse of discretion or extraordinary circumstances that would warrant a modification ofdefendant's sentence in the interest of justice (see People v Anthony, 152 AD3d 1048, 1054 [2017], lvdenied 30 NY3d 978 [2017]; Peoplev Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]).
Turning to defendant's CPL article 440 motion, we reject defendant's contention that CountyCourt (Champagne, J.) erred in denying his motion to vacate the judgment of conviction withouta hearing based on, among other things, the People's alleged Brady violation in failing todisclose certain impeachment material with respect to a key witness at trial. A hearing on a CPL440.10 motion is only required "where the defendant bases the motion upon nonrecord facts thatare material and, if established, would entitle the defendant to relief" (People v Pabon, 157 AD3d 1057,1058 [2018] [internal quotation marks and citation omitted]; see People v Satterfield, 66NY2d 796, 799 [1985]; People vMosley, 121 AD3d 1169, 1174 [2014], lv denied 24 NY3d 1086 [2014]).Defendant contends that, despite his pretrial requests for disclosure of Brady material, thePeople failed to disclose the full extent of their cooperation agreement with Gardner and laterknowingly allowed Gardner to falsely testify about the extent thereof. Defendant argues that, hadthis claimed Brady violation not occurred and Gardner's testimony been properlydiscredited, the verdict may well have been different.
The People do have a duty to disclose evidence in their possession "which is exculpatory [innature] or may be used for impeachment purposes" (People v Burroughs, 64 AD3d 894, 898 [2009], lv denied13 NY3d 794 [2009]; see People vFuentes, 12 NY3d 259, 263 [2009]; People v Steadman, 82 NY2d 1, 7 [1993];see also Brady v Maryland, 373 US 83 [1963]), which includes the "existence of anagreement between the prosecution and a witness, made to induce the testimony of the witness"(People v Novoa, 70 NY2d 490, 496 [1987] [internal quotation marks and citationomitted]; see People v Lewis, 125AD3d 1109, 1110 [2015]). "To establish a Brady violation, a defendant must showthat (1) the evidence is favorable to the defendant because it is either exculpatory or impeachingin nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose becausethe suppressed evidence was material" (People v Fuentes, 12 NY3d at 263; accordPeople v Lewis, 125 AD3d at 1110; see People v Garrett, 23 NY3d 878, 885 [2014]).
Here, the People did have a cooperation agreement with Gardner, but its existence wasknown to defendant well before trial. In August 2011, approximately 11 months after the murder,Gardner, who was then facing a number of unrelated criminal charges in several jurisdictionswithin St. Lawrence County and was represented by the Conflict Defender's Office, entered into aplea agreement in satisfaction of all pending charges, whereby he pleaded guilty to one count ofburglary in the second degree with an agreed-upon prison term of nine years to be followed byfive years of postrelease supervision. As part thereof, he also agreed to cooperate with the Peoplewith regard to this murder investigation. In 2012, when defendant was indicted on the instantcharges, he was represented at arraignment by the Conflict Defender's Office—the sameoffice that had earlier represented Gardner. Recognizing this and several other conflicts, [*6]the Conflict Defender's Office thereafter successfully moved to berelieved as defendant's counsel, specifically referencing, among other things, Gardner'scooperation agreement. Although the exact details of how and when defendant became aware ofthe existence of Gardner's cooperation agreement do not appear on the record, it is apparent that,by November 2012, defendant was aware of same based on his attorney's motion seeking to berelieved. Thus, contrary to defendant's assertion, the fact that Gardner was a cooperating witnessfor the People was known to defendant months before his 2013 trial and, therefore, suchagreement was apparent on the face of the record (see People v Coleman, 155 AD3d 1097, 1098 [2017], lvdenied 30 NY3d 1114 [2018]) and could or should have been placed on the record duringtrial (see People v Culver, 69 AD3d976, 979 [2010]). The documentary evidence that defendant relies upon in support of hisclaim that the People failed to disclose the full extent of their cooperation agreement withGardner, therefore, does not constitute new evidence as contemplated by CPL 440.10.
The only nonrecord evidence that defendant proffered in support of his motion was aredacted supplemental report from Detective Sergeant Burns with respect to an interview that heconducted with Gardner in March 2011.[FN4] This report, however, did not constitute newlydiscovered evidence (see CPL 440.10 [1] [g]) to the extent that it concerned facts thatwere already known to defendant at trial; namely, that Gardner was a cooperating witness for thePeople (see People v Cain, 96 AD3d1072, 1073 [2012], lv denied 19 NY3d 1101 [2012]).[FN5] Accordingly, because defendant was aware ofGardner's cooperation agreement with the People, he was free to—and did infact—cross-examine Gardner with respect to same. Defendant's failure to exercise duediligence by making a timely objection with respect to Gardner's testimony in this regard or thePeople's comments during summation render his arguments regarding defendant's alleged perjuryand the People's alleged prosecutorial misconduct unpreserved for review (see People v Booker, 53 AD3d697, 704 [2008], lv denied 11 NY3d 853 [2008]). Thus, defendant may notcollaterally attack his conviction via a CPL article 440 motion based on facts that could haveplaced on the record during trial (see CPL 440.10 [2] [b]; People v Herbert, 147 AD3d 1208,1210 [2017]; People v Jones, 101AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]; People v Degondea, 3 AD3d 148,157 [2003], lv denied 2 NY3d 798 [2004]).
[*7] In any event, even assuming, without deciding, that the People's failure to disclose Burns'redacted supplemental report or otherwise reveal the full extent of Gardner's plea/cooperationagreement with the People constituted a Brady violation (see generally People v Smith, 85 AD3d1297, 1298 [2011]), under the circumstances presented, defendant failed to establish themateriality of this evidence. Notably, Gardner's testimony did not go whollyunimpeached—he was cross-examined regarding the fact that he had requested leniencyfrom the People with regard to a friend's unrelated pending criminal charges in return for histestimony, and he was also questioned regarding his extensive criminal history.[FN6] Moreover, given the strength ofthe evidence against defendant and the independent proof separate and apart from Gardner'stestimony establishing defendant's participation in the robbery, we find that there was noreasonable possibility that, had this impeachment material been timely disclosed, the jury wouldhave reached a different verdict (see People v Miller, 159 AD3d 1045, 1047 [2018]; People vJohnson, 107 AD3d 1161, 1165-1166 [2013], lv denied 21 NY3d 1075 [2013]).Accordingly, we find no abuse of discretion in County Court's denial of defendant's CPL article440 motion, without a hearing (see People v Pabon, 157 AD3d at 1058-1059; Peoplev Kot, 126 AD3d at 1027; comparePeople v Giuca, 158 AD3d 642, 645-647 [2018]; People v Lewis, 125 AD3d at1110-1111). Defendant's remaining contentions, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
McCarthy, J.P., Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1:DNA samples from the victim,Bartlett and defendant's codefendants were also compared to the DNA profile found in the glove,and the forensic scientist testified that all of them were excluded as possible DNA contributors.
Footnote 2:Upon further questioning,defendant stated that he had been to defendant's apartment one week prior to November 18, 2010to purchase prescription narcotics. Later during the same interview, defendant indicated that thevictim lived next to a laundromat and perhaps the victim had picked up a pair of his boxer shortsor that maybe he had blown his nose and thrown it in the trash there. During a second interviewwith police, defendant was informed that his DNA was found at the crime scene. Although heinitially denied this as a possibility, he later indicated that his DNA was on the victim because hehad shaken hands with him earlier on the day that the victim was killed.
Footnote 3:No expert testimony was offeredby defendant in order to refute Livingstone's findings as to the cause of death.
Footnote 4:Gardner was initially brought infor questioning with regard to his alleged involvement in an unrelated burglary. During theinterview, however, Gardner revealed that he had information about the victim's murder.Ultimately, Gardner agreed to wear a wire in order to obtain statements from those individualsthat he alleged were involved in the victim's murder. The report indicates that Burns informedGardner during the interview that, if he did not follow through on his promise, Burns "was notgoing to see what [he] could do about the [b]urglary charge."
Footnote 5:Even if this report could beconsidered new evidence, it existed prior to trial and defendant failed to make any showing that itcould not have been produced even with due diligence on his part (see CPL 440.10 [1][g]; People v Kot, 126 AD3d1022, 1026 [2015], lv denied 25 NY3d 1203 [2015]). Notably, defendant ultimatelyprocured the subject report via a Freedom of Information Law request.
Footnote 6:Gardner acknowledged oncross-examination that, in return for his cooperation in the subject investigation, he asked thePeople if they could assist his friend—Joshua Pitts—in avoiding jail time in apending criminal matter. Upon questioning, Gardner testified that the People indicated "that theywould look into it, [but] that they couldn't guarantee anything."