People v Malloy

2018 NY Slip Op 07977 [166 AD3d 1302]

November 21, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 2, 2018

[*1]

The People of the State of New York,Respondent, v Edward Malloy, Also Known as EB,Appellant.

Paul J. Connolly, Delmar, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the Supreme Court (Mott, J.), rendered March11, 2016 in Albany County, upon a verdict convicting defendant of the crimes of murderin the second degree and criminal possession of a weapon in the second degree.

Following a jury trial, defendant was convicted of murder in the second degree andcriminal possession of a weapon in the second degree. The charges stemmed from aFebruary 16, 2014 incident outside a tavern in the City of Albany during which thevictim was shot multiple times and killed. Defendant was sentenced to consecutiveprison terms of 22 years to life on the murder conviction and seven years, followed byfive years of postrelease supervision, on the criminal possession of a weapon conviction.He now appeals.

Initially, we reject defendant's contention that the indictment must be dismissedbecause the integrity of the grand jury proceeding was impaired. A grand jury proceedingthat yields an indictment is defective when it "fails to conform to the requirements of[CPL article 190] to such degree that the integrity thereof is impaired and prejudice to thedefendant may result" (CPL 210.35 [5]). Although a "defendant need not demonstrateactual prejudice under this statutory scheme to prevail" (People v Sayavong, 83NY2d 702, 709 [1994]), "[d]ismissal of an indictment pursuant to CPL 210.35 (5) is adrastic, exceptional remedy and should thus be [*2]limited to those instances where prosecutorial wrongdoing,fraudulent conduct or errors potentially prejudice the ultimate decision reached by thegrand jury" (People vSutherland, 104 AD3d 1064, 1066 [2013] [internal quotation marks, bracketsand citations omitted]; seePeople v Thompson, 22 NY3d 687, 699 [2014]; People v Huston, 88NY2d 400, 409 [1996]).

The minutes of the grand jury presentment reflect three instances where a grand juroracknowledged that he/she knew a witness.^[FN1] In each instance, the prosecutorinquired whether there was anything concerning the grand juror's knowledge of thewitness that would lead the grand juror to believe that he/she could not be fair andimpartial, and each answered in the negative (see People v Richardson, 132 AD3d 1239, 1241 [2015]; People v Farley, 107 AD3d1295, 1296 [2013], lv denied 21 NY3d 1073 [2013]; compare People v Revette, 48AD3d 886, 888 [2008]). While we agree with defendant that the precise nature ofthe relationship between each grand juror and the particular witness should have beenfurther explored by the prosecutor (see generally People v Revette, 48 AD3d at887-888), we do not find the exceptional remedy of dismissal to be warranted under thefacts and circumstances of this case. The salient evidence against defendant during thegrand jury presentment came not from the testimony of any of the civilian witnesses whowere present on the evening of the incident, but from the extensive surveillance videofootage that captured the shooting itself and the events that unfolded both prior andsubsequent thereto. Indeed, the testimony of the three witnesses at issue proved to be oflittle, if any, consequence; such testimony tended neither to incriminate nor exoneratedefendant and, in large measure, did nothing more than confirm their presence at thescene. Mindful that "the statutory test, which does not turn on mere flaw, error orskewing . . .[,] is very precise and very high" (People v Darby, 75NY2d 449, 455 [1990]; accord People v Thompson, 22 NY3d at 699; People v Baptiste, 160 AD3d976, 978 [2018], lv denied 31 NY3d 1145 [2018]), we find no "articulable'likelihood of' or . . . 'potential for' prejudice" stemming from the grandjurors' prior knowledge of the witnesses in question (People v Adessa, 89 NY2d677, 686 [1997]; see People vPiznarski, 113 AD3d 166, 181 [2013], lv denied 23 NY3d 1041 [2014];People v La Duca, 172 AD2d 1054, 1055 [1991]).

Defendant next challenges the verdict as unsupported by legally sufficient evidenceand against the weight of the evidence, primarily arguing that the People'sproof—which was largely circumstantial in nature—failed to establish hisidentity as the shooter.^[FN2] "[E]ven in circumstantial evidencecases, the standard for appellate review of legal sufficiency issues is 'whether any validline of reasoning and permissible inferences could lead a rational person to theconclusion reached by the fact finder on the basis of the evidence at trial, viewed in thelight most favorable to the People' " (People v Hines, 97 NY2d 56, 62[2001], quoting People v Williams, 84 NY2d 925, 926 [1994]; accord People v Reichel, 110AD3d 1356, 1363 [2013], lv denied 22 NY3d 1090 [2014]). Whenconducting a weight of the evidence review, we must[*3]"first determine, based on all of the credible evidence,whether a different result would have been unreasonable and, if not, weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the [proof] to determine if the verdict is supported bythe weight of the evidence" (People v Wilson, 164 AD3d 1012, 1014 [2018]; see People v Danielson, 9NY3d 342, 348 [2007]).

The People's theory of the case was that defendant intentionally shot and killed thevictim as the culmination of an ongoing, heated altercation between the two thattranspired less than an hour earlier. Because the murder weapon was never discoveredand none of the individuals who were undisputedly present at the scene claimed to havewitnessed the killer in the act of shooting, the People relied heavily upon surveillancevideo footage taken from cameras located in the interior and exterior of the tavern, aswell as video footage obtained from a City-owned street camera positionedapproximately 100 yards south of the tavern. Taken together, the footage shows thatdefendant and the victim separately arrived at the tavern at approximately 3:00 a.m. onthe morning of February 16, 2014. While outside, they are seen exchanging words andengaging in physical contact, with defendant ultimately pushing the victim to the ground.The two thereafter proceeded inside where the verbal dispute continued, causing thetavern's bouncer to intervene in an effort to stop what he perceived to be an imminentaltercation. "While this proof of a potential motive does not establish an element of thecrime, it cannot be ignored" (People v Stanford, 130 AD3d 1306, 1307 [2015] [internalquotation marks and citations omitted], lv denied 26 NY3d 1043 [2015]; seePeople v Marin, 65 NY2d 741, 745 [1985]; People v Thibeault, 73 AD3d 1237, 1239-1240, [2010],lv denied 15 NY3d 810 [2010], cert denied 562 US 1293 [2011]).

The victim exited the tavern roughly 10 minutes later, after which defendant can beseen making several calls on his cell phone. Soon thereafter, a Buick Rendezvous beingdriven by defendant's girlfriend, Marika Hodge, arrives and parks in front of the tavern.As Hodge enters the tavern, defendant immediately gets up from his seat and walks to therear of the establishment. Hodge follows, with her right hand stiffly in her coat pocket.The two then proceed to enter the bathroom and reemerge approximately 20 secondslater, with Hodge's hand now swinging freely beside her. Defendant, Hodge and severalothers—including Marquetta Jackson, a mutual friend of defendant and thevictim—thereafter remain in the tavern until approximately 3:30 a.m., when thetavern begins to close down.

Once outside, defendant—who appears in a visibly agitated state—canbe seen pacing and looking around while placing his hand behind his back as ifattempting to grasp something. Moments later, an animated conversation transpiresbetween defendant and Hodge during which Hodge is depicted grabbing at defendantand reaching around his backside in an apparent attempt to pull something away fromhim. At this point, video surveillance captures defendant holding a gun behind his backbefore eventually secreting it in his rear waistband. Meanwhile, from the street camera,the victim can be observed exiting his vehicle and walking to a small parking lot locatedapproximately 20 to 25 feet south of the tavern. Jackson—who had made threesuccessive attempts to contact the victim during the brief period since she and the othersexited the tavern—then leaves the front of the establishment and can be seen onfootage from the street camera walking in the direction of the victim. When defendantwent to follow, Hodge attempted to physically restrain him and the two grappled beforedefendant eventually pulled away. Defendant then proceeded to the parking lot where thevictim and Jackson were located, followed by Hodge and defendant's two cousins, EshodMalloy and William Bonds. Soon thereafter, a woman is shown exiting a vehicle andjoining the group. Among these six [*4]individuals whojoined the victim, only defendant was wearing a dark top and light-colored pants.

Less than a minute later, the victim can be seen taking a step back and thencollapsing to the ground. While the street camera depicted the murder, it was not of suchquality that the identity of the shooter is apparent. As the group flees the scene, twoindividuals are visible running into the street together and then proceeding to the vehiclethat Hodge had arrived in earlier. Notably, the taller of the two appears to be wearingpants of a slightly lighter color than his/her top. As the taller figure begins to enter thepassenger side of the vehicle, a silhouette of what appears to be a gun is visible in thisindividual's hand.

A detective who investigated the crime scene found six .45 caliber shell casingsarranged more or less in a linear formation within feet of the victim's body. The Peoplealso called an expert in the field of firearms, who examined the shell casings at issue andopined that they were fired from the same gun. Upon execution of a search warrant atdefendant's home, police discovered two live .45 caliber rounds in the dresser drawer of abedroom. An autopsy determined that the victim suffered gunshot wounds to his chest,hip, forearm and hands, and that his death was caused by a gunshot wound to the neck.Based upon the trajectory of the fatal bullet, the medical examiner who performed theautopsy concluded that either the shooter was directly above the victim or the victim wasbending toward the shooter at the time of impact.

Viewing the foregoing evidence in the light most favorable to the People, we findthat it was legally sufficient to support defendant's convictions of these crimes. "In theend, it is a question whether common human experience would lead a reasonable[person], putting his [or her] mind to it, to reject or accept the inferences asserted for theestablished facts" (People v Wachowicz, 22 NY2d 369, 372 [1968] [citationsomitted]; accord People v Davis, 41 NY2d 678, 679 [1977]; see People vFord, 66 NY2d 428, 432 [1985]; People v Harris, 88 AD3d 83, 86-87 [2011], revd onother grounds 19 NY3d 679 [2012]). Contrary to defendant's contention, there weresufficient established facts from which permissible inferences could be drawn to lead areasonable person to conclude that it was defendant who fatally shot the victim with theweapon seen in his possession just minutes before and immediately following the slaying(see People v Callicut, 101AD3d 1256, 1257-1259 [2012], lv denied 20 NY3d 1096 [2013]; People v Jackson, 100 AD3d1258, 1259-1261 [2012], lv denied 21 NY3d 1005 [2013]; People v Brown, 46 AD3d949, 951 [2007], lv denied 10 NY3d 808 [2008]; People v Ruiz, 211AD2d 829, 830 [1995], lv denied 85 NY2d 942 [1995]; see also People v Miles, 119AD3d 1077, 1078-1079 [2014], lv denied 24 NY3d 1003 [2014]). As todefendant's weight of the evidence challenge, we find that a different verdict would nothave been unreasonable given the circumstantial nature of the evidence implicatingdefendant as the shooter. However, upon evaluating the evidence in a neutral light,weighing the probative force of the testimony and considering the relative strength of theinferences to be drawn from the proof (see People v Danielson, 9 NY3d at348-349; People v Bleakley, 69 NY2d 490, 495 [1987]), we cannot say that thejury failed to give the evidence the weight it should be accorded (see People v Alnutt, 107 AD3d1139, 1143-1144 [2013], lv denied 22 NY3d 1136 [2014]; People vCallicut, 101 AD3d at 1259; People v Brown, 46 AD3d at 951-952;People v Ruiz, 211 AD2d at 830).

We next address defendant's assertion that Supreme Court erred in denying hisBatson challenge (see Batson v Kentucky, 476 US 79 [1986]) as to jurorNo. 13. When determining whether a peremptory challenge has been exercised in adiscriminatory manner, a trial court must engage in a now-familiar three-step protocol."At step one, the moving party bears the [*5]burden ofestablishing a prima facie case of discrimination in the exercise of peremptorychallenges. Once a prima facie case of discrimination has been established, the burdenshifts, at step two, to the nonmoving party to offer a facially neutral explanation for eachsuspect challenge. At the third step, the burden shifts back to the moving party to provepurposeful discrimination and the trial court must determine whether the profferedreasons are pretextual" (Peoplev Hecker, 15 NY3d 625, 634-635 [2010] [internal quotation marks and citationsomitted], cert denied 563 US 947 [2011]; see People v Bridgeforth, 28 NY3d 567, 571 [2016];People v Allen, 86 NY2d 101, 109-110 [1995]).

The first step of this analysis need not detain us, as the issue of whether defendantestablished a prima facie case became moot when the prosecutor stated his race-neutralreasons for the subject challenge (see People v Hecker, 15 NY3d at 652;People v James, 99 NY2d 264, 270 [2002]; People v Grafton, 132 AD3d 1065, 1067 [2015], lvdenied 26 NY3d 1145 [2016]). The prosecutor based his peremptory challenge withrespect to juror No. 13 on the juror's "attitude" in response to his questions, noting thathis "interaction with her was not favorable at all." When questioned further by SupremeCourt, the prosecutor explained that his perceptions about the juror's attitude were basedupon her tone of voice and mannerisms when speaking to him, which he described as"dismissive" and "rude." The prosecutor also expressed concern with what he deemed tobe an abnormal response by juror No. 13 to his inquiry as to why she believed she wouldbe a good juror. The explanation proffered by the prosecutor, which need not bepersuasive or plausible but only "facially permissible" (People v Smocum, 99NY2d 418, 422 [2003]; see Purkett v Elem, 514 US 765, 768 [1995]), wasrace-neutral and thus satisfied the People's burden under step two (see People vHernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]; People v Acevedo, 141 AD3d843, 846 [2016]; People vMorgan, 24 AD3d 950, 952 [2005], lv denied 6 NY3d 815 [2006];People v Bodine, 283 AD2d 979, 979-980 [2001], lv denied 96 NY2d898 [2001]; People v Diaz, 269 AD2d 766, 766 [2000], lv denied 95NY2d 852 [2000]).

We therefore turn to the third and final step of the Batson inquiry, which"requires the trial court to make an ultimate determination on the issue of discriminatoryintent based on all of the facts and circumstances presented" (People v Smocum,99 NY2d at 422; accord People v Hecker, 15 NY3d at 656). Here, althoughSupreme Court initially expressed skepticism as to—and, in fact,challenged—the prosecutor's stated reasons, the court made further inquiries of theprosecutor and heard arguments from both sides before ultimately crediting theprosecutor's race-neutral explanation (see People v Showers, 300 AD2d 151, 151[2002], lv denied 100 NY2d 645 [2003]).^[FN3] That determination, which wasnecessarily based in large part upon Supreme [*6]Court'sassessment of the prosecutor's credibility, is entitled to " 'great deference' onappeal" (People v Hecker, 15 NY3d at 656, quoting Miller-El v Cockrell,537 US 322, 340 [2003]; see Batson v Kentucky, 476 US at 98 n 21; People vHernandez, 75 NY2d at 356; People v Knowles, 79 AD3d 16, 21 [2010], lvdenied 16 NY3d 896 [2011]; People v Morgan, 24 AD3d at 952). Moreover,while the sufficiency of defendant's prima facie showing indeed became moot once theprosecutor offered his race-neutral reasons for the peremptory strike at issue, "thestrength or paucity of the step one showing is a factor that should be considered indetermining whether the record as a whole supports a finding of pretext" (People vHecker, 15 NY3d at 660; see Snyder v Louisiana, 552 US 472, 478 [2008]).The prima facie showing in this case was very weak, as the prosecutor did not challengethe only two black jurors on the first panel, and the only other black juror on the secondpanel to that point had been struck for reasons so compelling that even defense counselagreed removal was appropriate (see People v Hecker, 15 NY3d at 653-655, 660;People v Bolling, 79 NY2d 317, 325 [1992]; People v Henderson, 118 AD3d 1020, 1021 [2014],revd on other grounds 27 NY3d 509 [2016]). Considering "all of thecircumstances that bear upon the issue of racial animosity" (Snyder v Louisiana,552 US at 478; see People v Smocum, 99 NY2d at 422; People vKnowles, 79 AD3d at 23), and mindful that "the best evidence [on that issue] oftenwill be the demeanor of the attorney who exercises the challenge" (Hernandez v NewYork, 500 US 352, 365 [1991]), we cannot conclude that defendant met "his ultimateburden of showing that the reasons given by the People were pretexts for intentionaldiscrimination" (People vArdrey, 92 AD3d 967, 970 [2012], lv denied 19 NY3d 861 [2012];see People v Smocum, 99 NY2d at 422; People v Payne, 88 NY2d 172,181 [1996]; People v Allen, 86 NY2d 101, 111 [1995]).

We are similarly unconvinced that defendant was denied his right to a fair trial whenSupreme Court refused to allow Bonds to take the stand solely for the purpose ofinvoking his privilege against self-incrimination in the presence of the jury. Such adetermination rests within the sound discretion of the trial court (see People vThomas, 51 NY2d 466, 472 [1980]), and we discern no abuse of that discretion here.Had Bonds been permitted to take the stand and refuse to answer any questions regardingthe incident in question, the jury may well have inferred that Bonds, rather thandefendant, was the killer. As Supreme Court correctly noted, such an inference wouldhave been patently unwarranted "since [Bonds'] refusal to testify could have been basedupon considerations wholly unrelated to the crime[s] at issue" (id. at 472; see People v Mejia, 126 AD3d1364, 1365 [2015], lv denied 26 NY3d 1090 [2015], cert denied 578US &mdash, 136 S Ct 2416 [2016]; People v Grimes, 289 AD2d 1072, 1073[2001], lv denied 97 NY2d 755 [2002]). Nor did the People abuse their discretionin declining to confer immunity upon Bonds (see CPL 50.20 [2] [b]; 50.30;People v Owens, 63 NY2d 824, 825-826 [1984]; People v Shapiro, 50NY2d 747, 760 [1980]; Peoplev Rivera, 124 AD3d 1070, 1072 [2015], lv denied 26 NY3d 971 [2015];People v Smith, 247 AD2d 781, 784 [1998], lv denied 93 NY2d 1027[1999]).

Finally, we are unpersuaded by defendant's sentencing challenges. Supreme Courtlawfully ran the sentence imposed on the murder count consecutively with the sentenceimposed on the count of "simple" weapon possession (see Penal Law§ 265.03 [3]), as the trial evidence [*7]demonstrated that defendant completed the act ofpossession within the meaning of that statute before the shooting occurred (see People v Brown, 21 NY3d739, 750-751 [2013]; People v Durham, 146 AD3d 1070, 1075 [2017], lvdenied 29 NY3d 997 [2017]; People v Fabers, 133 AD3d 616, 617 [2015], lvdenied 27 NY3d 1150 [2016]; compare People v Harris, 115 AD3d 761, 762-763 [2014],lv denied 23 NY3d 1062 [2014]). Further, given defendant's extensive criminalhistory, the brutal and senseless nature of his acts and his failure to accept responsibilityfor them, we perceive neither an abuse of discretion nor extraordinary circumstances thatwould warrant a reduction of the sentence in the interest of justice (see People v Pratt, 162 AD3d1202, 1205 [2018], lv denied 32 NY3d 940 [2018]; People vStanford, 130 AD3d at 1310; People v Green, 121 AD3d 1294, 1297 [2014], lvdenied 25 NY3d 1164 [2015).

To the extent not specifically addressed herein, defendant's remaining contentionshave been examined and found to be without merit.

Garry, P.J., Rumsey and Pritzker, JJ., concur.

Clark, J. (dissenting). I cannot join the majority in upholding Supreme Court's denialof defendant's Batson claim regarding the People's use of a peremptory challengeto excuse juror No. 13. Accordingly, I respectfully dissent.

In my view, Supreme Court failed to satisfy its "judicial responsibility" to make anadequate record "reflecting the basis for [it]s ruling[ ]" (People v Payne, 88 NY2d172, 184 [1996]; see People vHecker, 15 NY3d 625, 657 [2010], cert denied 563 US 947 [2011]). Indenying defendant's Batson challenge, Supreme Court simply stated, "It's a closecall, but I am going to rule in favor of the prosecution. For the reasons set forth on therecord." This ambiguous ruling does not expressly determine the factual issue of whetherthe prosecutor's stated reasons for the peremptory challenge were pretextual or,alternatively, could be believed (see Snyder v Louisiana, 552 US 472, 479[2008]; People v Morgan,75 AD3d 1050, 1051-1052 [2010], lv denied 15 NY3d 894 [2010]). Theruling does not illuminate the court's reasons for concluding that "it" was a "close call,"highlight the factors that it considered in resolving—if it did in factresolve—the obvious credibility dispute, or otherwise provide this Court with theability to engage in a meaningful review of the determination (see People vHecker, 15 NY3d at 657; People v Payne, 88 NY2d at 183-184). Rather, weare left to infer Supreme Court's reasons for denying defendant's application from thecolloquy that took place on the record before the ruling. Up until the ruling, thediscussion between Supreme Court and the prosecutor would lead one to believe that thecourt disagreed with the prosecutor's subjective assessments of juror No. 13 and foundthe prosecutor's stated reasons to be disingenuous.^[FN*] During that colloquy, Supreme Courtpressed the prosecutor to be more specific in his reasons for concluding that juror No. 13had an "attitude," stating that it too had "watched [the juror] very carefully." When theprosecutor described the juror's tone of voice as "dismissive" and "rude," the court stated,"I sat and listened to her myself and I would not define [her tone of voice] as dismissiveand rude." The court went on to state that the prosecutor had given "nothing other than. . . conclusions" and [*8]that it did not "seethe attitude that [the prosecutor was] suggesting." The court further challenged theprosecutor's dissatisfaction with the juror's answer to his question concerning herpossible jury service, stating that it was a "very poor question," and thereafter expressingincredulity at the prosecutor's characterization of her response as abnormal.

At no point did Supreme Court give any indication that it believed any of therace-neutral reasons offered by the prosecutor or that the prosecutor's subjectiveimpressions of juror No. 13 might have some basis in the record. Nor did Supreme Courtindicate that its challenges and rebukes of the prosecutor's reasons were intended to testthe sincerity of those reasons. To infer such an intention on the part of Supreme Courtwould, in my view, be to unduly engage in speculation. In the absence of an adequaterecord setting forth the basis for Supreme Court's ruling, I am unable to engage in anintelligent and meaningful review of the issue (see People v Acevedo, 141 AD3d 843, 852 [2016,McCarthy, J., dissenting]; People v Tucker, 256 AD2d 1019, 1020 [1998];see generally People v Payne, 88 NY2d at 183-184). As I cannot overlookSupreme Court's failure to make an adequate record, and because I am unwilling to fill inthe gaps of the incomplete record with inference or supposition, I respectfully disagreewith the majority's determination to uphold Supreme Court's conclusory ruling ondefendant's Batson challenge. I would instead hold defendant's appeal inabeyance and remit the matter for further proceedings necessary to satisfy theBatson requirements.

Ordered that the judgment is affirmed.

Footnote 1:It is impossible todetermine from the minutes whether these acknowledgements were made by threeseparate grand jurors or whether one of the grand jurors knew multiple witnesses, asthere is no grand juror number or other identifying information recorded in the minutes.

Footnote 2:In his pro sesupplemental brief, defendant also contends that the People failed to present legallysufficient evidence of his intent to cause the death of the victim. By failing to raise thisspecific ground in his motion for a trial order of dismissal, defendant has not preservedthe issue for our review (seePeople v Glover, 160 AD3d 1203, 1203-1204 [2018]).

Footnote 3:Contrary to the positiontaken by the dissent, we need not engage in supposition or speculation to discern thebasis for Supreme Court's ruling. To be sure, there can be no question that the courtcould have provided a more detailed elaboration for its decision to deny theBatson challenge. That said, Supreme Court's ruling that it was finding in favorof the prosecution "[f]or the reasons set forth on the record" could mean only onething—that it was crediting the prosecutor's stated reasons for the peremptorychallenge. Even assuming that this singular conclusion does not necessarily follow fromthe statements made by Supreme Court in its ruling, we nevertheless find that, "bydenying defendant's Batson challenge, the court thereby implicitly determinedthat the prosecutor's race-neutral explanations for exercising [the] peremptory challengewere not pretextual" (People vSmith, 157 AD3d 978, 981 [2018], lv denied 31 NY3d 1087 [2018]; see People v Dandridge, 26AD3d 779, 780 [2006]; People v Beverly, 6 AD3d 874, 876 [2004], lvdenied 3 NY3d 637 [2004]). Accordingly, we conclude that Supreme Court satisfiedits requirements under Batson and find no reason to remit the matter for furtherproceedings.

Footnote *:It is evident fromdefense counsel's on-the-record expression of shock immediately following SupremeCourt's ruling that he had expected and anticipated the opposite ruling.