| People v Pratt |
| 2018 NY Slip Op 04385 [162 AD3d 1202] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1](June 14, 2018)
| The People of the State of New York,Respondent, v Maurice Pratt, Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (Mott, J.), rendered May 9,2014 in Greene County, upon a verdict convicting defendant of the crimes of murder in thesecond degree and petit larceny.
On January 1, 2013, police discovered the victim's body in his residence in the Town ofGreenville, Greene County. Defendant was thereafter indicted for the crimes of murder in thefirst degree, murder in the second degree, two counts of robbery in the first degree and petitlarceny. After the ensuing jury trial, he was convicted of murder in the second degree and petitlarceny. Supreme Court sentenced defendant to a prison term of 22 years to life for murder in thesecond degree and one year of incarceration for petit larceny. Defendant appeals.
The verdict was supported by legally sufficient evidence and is not against the weight of theevidence. On a legal sufficiency challenge, this Court views the evidence in the light mostfavorable to the People to evaluate whether any valid line of reasoning and permissibleinferences could satisfy every element of the charged crimes and lead rational people to theconclusion reached by the jury (seePeople v Elwood, 80 AD3d 988, 989-990 [2011], lv denied 16 NY3d 858[2011]). It is undisputed that the victim was shot three times in the head, causing his death. Awitness testified that he drove defendant to the victim's house on December 23, 2012. Whilewaiting outside, the witness heard two loud bangs and defendant subsequently came out of thehouse with a television. Other witnesses saw defendant later that night with a similar television,which also looked like the picture on an empty television box located in the [*2]victim's residence. Defendant testified that he had a similartelevision on the same date, but that he bought it from the witness.
Cell phone records showed that defendant requested a ride to Greenville, and defendant'sphone was in the area of the victim's residence at the time specified by the witness. Defendantalso knew the victim and was aware that he usually had cash on hand, whereas the witness didnot know the victim, his address or his phone number. After defendant was informed that thepolice were investigating him, he displayed consciousness of guilt by asking others to delete theirtext messages with him and to surreptitiously engage a female to keep the witness high on drugsto discredit his future testimony. The evidence was legally sufficient to establish the crimes ofmurder in the second degree and petit larceny. Although another verdict would not have beenunreasonable, the convictions are not against the weight of the evidence, "considering theevidence in a neutral light and according deference to the jury's credibility assessments"(id. at 990).
Defendant did not preserve his arguments regarding an alleged improper demonstration inthe courtroom, an improper jury charge, a violation of the court's Molineux ruling, aviolation of defendant's Confrontation Clause rights and misconduct during the prosecutor'ssummation. We decline defendant's request to take corrective action with respect to these issuesin the interest of justice.
Nevertheless, defendant argues that trial counsel failed to provide him with effectiveassistance by not objecting to most of these unpreserved issues. To succeed on this argument,defendant must demonstrate that counsel failed to provide meaningful representation, based onthe totality of the circumstances, "and the absence of strategic or other legitimate explanations forcounsel's allegedly deficient conduct" (People v Smith, 157 AD3d 978, 981 [2018] [internal quotationmarks and citation omitted]; see Peoplev Honghirun, 29 NY3d 284, 289 [2017]). "There can be no denial of effective assistanceof trial counsel arising from counsel's failure to make a motion or argument that has little or nochance of success" (People v Criss,151 AD3d 1275, 1280 [2017] [internal quotation marks and citations omitted], lvdenied 30 NY3d 979 [2017]; seePeople v Thorpe, 141 AD3d 927, 935 [2016], lv denied 28 NY3d 1031[2016]).
Regarding the courtroom demonstration, counsel raised a different objection than what isnow raised on appeal. The current argument is that the television in the courtroom was dissimilarto the one taken from the victim's house, so an ability to move the courtroom television wouldnot be relevant. However, witnesses testified that the television in the courtroom was comparableto the victim's television and the demonstration was in response to questions concerning whetherone person could lift that television. Because the demonstration was relevant to a contested issueand based on similar conditions, any objection to the demonstration would have had little chanceof success (see People v Lippe, 145AD3d 1035, 1037 [2016], lv denied upon reconsideration 30 NY3d 1020 [2017]; People v Raucci, 109 AD3d 109,122 [2013], lv denied 22 NY3d 1158 [2014]; People v Boone, 176 AD2d 1085,1086 [1991], lv denied 79 NY2d 853 [1992]; compare People v Acevedo, 40NY2d 701, 704-705 [1976]).
Defendant's jury charge arguments are unavailing. He now argues that he was entitled to amissing witness charge, but the record does not support that any noncumulative policeinvestigators should have testified. The accomplice charge was accurate because, "[w]heremultiple crimes are charged and the record shows that the crimes involved a common plan orscheme, evidence corroborating the accomplice on one crime is sufficient to provide the requiredcorroboration on the others" (People v Spencer, 272 AD2d 682, 684 [2000], lvdenied 95 NY2d 858 [2000]; seePeople v Thomas, 55 AD3d 357, 359 [2008], lvs denied 12 NY3d 783, 785, 788[2009]; People v Crow, 284 AD2d 653, 654 [2001], lv denied 96 NY2d 900[2001]). The murder, robbery and larceny charges here were part of a common plan. Thus,counsel was not ineffective in relation to Supreme Court's charge to the jury.
Defendant argues that counsel allowed a violation of his Confrontation Clause rights byfailing to object to the admission of DNA reports without requiring the testimony of the authorsof the reports or those who performed or supervised the DNA testing (see People v John, 27 NY3d 294,315 [2016]). Counsel may have strategically decided to allow admission of the reports withoutadditional witnesses. The reports showed that defendant's DNA was not discovered in thevictim's house, so their admission was helpful. Counsel cross-examined the People's scientificwitness regarding her lack of knowledge regarding the details of the testing and reports in thiscase, and permitting additional witnesses may have undermined the defense's strategy that thepolice failed to conduct a thorough investigation (see People v Perez, 142 AD3d 869, 870 [2016], lv denied28 NY3d 1149 [2017]).
Defendant's argument as to the prosecutor's summation lacks merit "inasmuch as thechallenged statements generally constituted fair comment on the evidence or were made inresponse to defense counsel's summation, and the few improper comments were not so pervasiveor flagrant as to require reversal" (People v Fomby, 101 AD3d 1355, 1357 [2012] [internal quotationmarks and citation omitted]; see Peoplev Thomas, 155 AD3d 1120, 1123-1124 [2017], lv denied 31 NY3d 1018 [2018];People v Johnson, 151 AD3d1462, 1466 [2017], lv denied 30 NY3d 1106 [2018]). Thus, counsel's failure toobject to the comments in summation did not deprive defendant of a fair trial. Moreover, counselmade appropriate motions, effectively cross-examined the People's witnesses, pursued alegitimate strategy and obtained acquittals of murder in the first degree and two counts ofrobbery. Considering the totality of the circumstances, counsel provided meaningfulrepresentation.
Although the prosecutor improperly argued that Supreme Court could rely on defendant'ssale of drugs when imposing sentence, the court did not indicate that it was relying on anyuncharged criminal conduct. Rather, in imposing sentence, the court noted that the jurydiscredited defendant's implausible story, his actions constituted clear consciousness of guilt, hefailed to accept responsibility and his actions were reprehensible. Finally, the sentence imposedwas not harsh or excessive.
Lynch, Devine, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.