| People v Perkins |
| 2018 NY Slip Op 07972 [166 AD3d 1285] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1](November 21, 2018)
| The People of the State of New York,Respondent, v Curtis Perkins, Appellant. |
Fernande Rossetti, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Schenectady County(Hoye, J.), rendered December 21, 2011, upon a verdict convicting defendant of thecrimes of attempted murder in the second degree, criminal possession of a weapon in thesecond degree (two counts), attempted assault in the first degree and recklessendangerment in the first degree, (2) by permission, from an order of said court, enteredApril 16, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, after a hearing, and (3) by permission, from an order of saidcourt (Sira, J.), entered June 22, 2017, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, after a hearing.
Defendant was convicted, after a jury trial, of attempted murder in the second degree,two counts of criminal possession of a weapon in the second degree, attempted assault inthe first degree and reckless endangerment in the first degree in connection with anincident, in January 2011, during which Ashton McNeal and two other men were waitingat a bus stop in the City of Schenectady, Schenectady County, when a hooded manapproached and pointed a gun at McNeal's head. McNeal later identified the man asdefendant and testified that defendant unsuccessfully tried to discharge the firearm,retreated from the bus stop and eventually fired the weapon in McNeal's direction,causing him and one of the other men to flee the scene. County [*2]Court (Hoye, J.) sentenced defendant to an aggregate prisonterm of 20 years, with a period of five years of postrelease supervision. Defendant latermoved, pursuant to CPL 440.10 (1) (g), to vacate the judgment of conviction basedupon, among other things, the discovery of new evidence. After a hearing, County Courtdenied defendant's motion. Defendant thereafter moved, pursuant to CPL 440.10 (1) (h),to vacate the judgment of conviction based upon ineffective assistance of counsel. Aftera hearing, County Court (Sira, J.) denied the motion. Defendant appeals the judgment ofconviction and, by permission, the denial of both CPL article 440 motions.
Initially, we do not agree with defendant that the grand jury proceeding wasdefective. In response to defendant's omnibus motion alleging grand juror bias, and afterbeing instructed by County Court (Hoye, J.) to specifically respond to defendant'sallegations of bias, the People submitted a letter from an Assistant District Attorneyacknowledging that a correction officer from the Schenectady County jail was a memberof defendant's grand jury and voted in the matter. The letter stated that all grand jurorswere advised that, if they knew a witness or a defendant, they were to abstain fromvoting if they could not be fair and impartial. The People also proffered, for in camerareview, an affidavit from the grand juror that attested to his ability to judge defendant'scase fairly and impartially. Accordingly, the People's letter to County Court, togetherwith the affidavit from the grand juror, are sufficient to overcome defendant's speculativeclaim of bias (see People v Wormuth, 35 AD2d 609, 609 [1970]; compare People v Revette, 48AD3d 886, 887-888 [2008]; cf. People v Gryner, 116 AD3d 1247, 1248 [2014]).
We also disagree with defendant that he was deprived of a fair trial when McNealtestified that defendant threatened him with a gun approximately 16 months before thealleged crime. The People sought to admit this evidence for the purpose of provingidentity, intent and motive for the charged crimes. After opposition by defendant, CountyCourt permitted the evidence. During trial, McNeal testified for the People that he had achild with Regina Dukes in 2008 and that he and Dukes broke up a few months later.McNeal recounted the contentious relationship between the two in the years thatfollowed, where they often quarreled over McNeal's visitation with their child. McNealtestified specifically about an incident when, after Dukes and an unidentified man deniedhim visitation, McNeal threw a brick through Dukes' window at the man. Thereafter, inSeptember 2009, McNeal was approached on the street by a man on a bicycle whoinformed McNeal that he was Dukes' boyfriend and warned McNeal not to contactDukes and to leave their child out of the picture. McNeal identified this man as defendantand testified that, during this encounter, he showed McNeal a handgun concealed in hispants. McNeal also revealed that, the morning of the bus stop shooting, he obtained afavorable custody determination from Family Court against Dukes, who demonstrateddisapproval to the judge. Given the People's explicit theory that the charged crimes wererelated to the longstanding custody dispute between Dukes and McNeal, this testimonywas admissible to show intent, motive and identity (see People v Rizvi, 126 AD3d 1172, 1173-1174 [2015],lv denied 25 NY3d 1076 [2015]; People v Doyle, 48 AD3d 961, 963-964 [2008], lvdenied 10 NY3d 862 [2008]; People v Williams, 25 AD3d 875, 876 [2006], lvdenied 6 NY3d 854 [2006]).
However, we agree with defendant that County Court abused its discretion bydenying his request to present an alibi witness. Pursuant to CPL 250.20 (3), "[i]f at thetrial the defendant calls such an alibi witness without having served the demanded noticeof alibi, . . . the court may exclude any testimony of such witness relating tothe alibi defense." Precluding a criminal defendant from proffering evidence in supportof his or her own case implicates the Compulsory Process Clause of the SixthAmendment (see Taylor v Illinois, 484 US 400, 407-409 [1988]; [*3]People v Brown, 107 AD3d 1145, 1147-1148[2013], lv denied 22 NY3d 1039 [2013]; People v Kelly, 288 AD2d 695,697 [2001], lv denied 97 NY2d 756 [2002]), and, although CPL 250.20 (3)explicitly states that the trial court's decision to permit a late notice of alibi isdiscretionary, preclusion is only an appropriate penalty "in the most egregiouscircumstances" (People v Brown, 274 AD2d 609, 610 [2000]; accord Peoplev Kelly, 288 AD2d at 697; see People v LeFebvre, 45 AD3d 1175, 1176 [2007]).When a defendant's "omission was willful and motivated by a desire to obtain a tacticaladvantage that would minimize the effectiveness of cross-examination and the ability toadduce rebuttal evidence, it would be entirely consistent with the purposes of theCompulsory Process Clause simply to exclude the witness'[s] testimony" (Taylor vIllinois, 484 US at 415; see People v Kelly, 288 AD2d at 697).
Here, the record is devoid of any evidence that defense counsel's failure to provideearlier notice of defendant's alibi witness was willful or intended to gain a tacticaladvantage (see Taylor v Illinois, 484 US at 415). To the contrary, defensecounsel's argument to County Court showed that, although defendant did not serve analibi notice in response to the People's demand for same, defendant did not intend to callan alibi witness except that the People—knowing that defendant had testified tohaving an alibi during the grand jury but that he had not presented that defense attrial—directly elicited testimony from Dukes about what defendant was doing onthe night of the shooting. In response to follow-up questions by the People, Dukesprovided the alibi witness's first name and generally discussed that defendant was friendswith this person. The People's question regarding what defendant was doing the night ofthe shooting was the first reference to defendant's alibi during the trial, and defendantthereafter sought permission to call his friend Ramel Steward as a witness for the firsttime. The People, despite raising and pursuing this line of questioning, objected becausedefendant had not served an alibi notice. Defendant argued that the People opened thedoor and created the issue and, as a result, defendant should not be precluded fromcalling Steward. We agree. Therefore, we find that County Court violated defendant'sconstitutional right to present a defense and, as such, abused its discretion by precludingdefendant from calling Steward as an alibi witness (see People v Green, 70 AD3d 39, 45 [2009]; People v Cruz, 50 AD3d490, 491-492 [2008]; People v Brown, 274 AD2d at 610).
Nor do we find that this error was harmless beyond a reasonable doubt inasmuch asthere is a reasonable possibility that the absence of an alibi witness contributed to theconviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Harris, 162 AD3d1240, 1243 [2018], lv denied 32 NY3d 937 [2018]; People v Anatriello, 161 AD3d1383, 1388 [2018], lv denied 31 NY3d 1144 [2018]). The People's case, atleast until they obtained a recording of defendant's telephone conversation purportedlyevincing that he confessed to the crime, was entirely grounded upon McNeal'sidentification, which was not without inconsistencies. Importantly, McNeal's testimonyregarding the incident differed from the other two men who were at the bus stop withhim during the shooting, not only as to whether McNeal identified the shooter during theincident, but also in how many gun shots were fired. Additionally, the testimony adducedat trial revealed a contentious relationship between McNeal and Dukes such that it wouldnot have been unreasonable for the jury to discredit McNeal's testimony given hispossible bias against defendant. Also, inasmuch as the People relied upon a recording ofdefendant's jailhouse telephone call, defendant's statement during the call that the witnesscould not see his face may have been an unartful attempt at describing the testimonyproffered during the previous day of trial, not a confession. Therefore, given that thePeople's case turned on the credibility of McNeal and an equivocal recording ofdefendant created during trial, defendant's alibi plainly could have impacted the outcomeof trial and, consequently, the preclusion of this [*4]testimony was not harmless (see People v Green, 70AD3d at 45-46; People vCollins, 30 AD3d 1079, 1080 [2006], lv denied 7 NY3d 811 [2006];People v Brown, 274 AD2d at 610). Accordingly, the judgment of convictionmust be reversed, and the case remitted for a new trial. In light of this determination,defendant's remaining arguments and the appeals from the denial of the CPL article 440motions are rendered academic.
Garry, P.J., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County fora new trial. Ordered that appeals from the orders entered April 16, 2013 and June 22,2017 are dismissed, as academic.