| People v Wilkinson |
| 2018 NY Slip Op 08206 [166 AD3d 1396] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Randy K. Wilkinson, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered June 14, 2016, upon a verdict convicting defendant of the crimes of murderin the second degree and criminal possession of a weapon in the fourth degree (twocounts).
Defendant was charged with murder in the second degree and criminal possession ofa weapon in the fourth degree (two counts) after he caused the victim's death by strikinghim in the head with a wooden cutting board and stabbing him with a knife. CountyCourt denied defendant's motion to dismiss the indictment on the ground that a grandjuror had a friendship with a witness. Following a Huntley hearing, the courtfound, among other things, that defendant did not have standing to contest a policesearch of his mother's apartment, in which he had been found with the victim's body.Defendant was convicted as charged after a jury trial and sentenced to a prison term of25 years to life on the murder conviction and concurrent terms on the weapon possessionconvictions. Defendant appeals.
County Court properly denied defendant's motion to dismiss the indictment. A grandjury proceeding is defective when "the integrity thereof is impaired and prejudice to thedefendant may result" (CPL 210.35 [5]). Dismissal of an indictment on this basis "is adrastic, exceptional remedy and 'should thus be limited to those instances whereprosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimatedecision reached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688 [2005], lvdenied 5 NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409[1996]; accord People vFarley, 107 AD3d 1295, 1295 [2013], lv denied 21 NY3d 1073 [2013]).Although potential prejudice may result from "a close relationship between a grand jurorand a witness" (People vRevette, 48 AD3d 886, 887 [2008]), we find no such potential in thecircumstances presented here.
Upon defendant's motion to inspect the grand jury minutes, County Court released anexcerpt in which a grand juror testified that one of the witnesses, a detective sergeant,was a [*2]friend. The grand juror had known the witnessfor 20 years and spoke with her every other week. Upon further questioning, the grandjuror denied having ever discussed police work or this case with the witness, andconfirmed the complete lack of information about the facts in this case. When askedwhether the friendship with this witness would prevent the grand juror from being fairand impartial, the grand juror responded, "I don't believe so, no." The prosecutor furtherinquired, "You're not concerned about that?" and the grand juror responded, "No."
Terms such as "believe" or "think" are "not . . . talismanic word[s] thatautomatically make[ ] a statement equivocal" in every situation (People vChambers, 97 NY2d 417, 419 [2002]; accord People v Shulman, 6 NY3d 1, 28 [2005], certdenied 547 US 1043 [2006]). Here, any doubt as to the grand juror's impartiality thatwas raised by the initial response was dispelled by the unequivocal response to theprosecutor's immediate follow-up question, as well as the statements that the witness hadnever discussed police work or this case (see People v Farley, 107 AD3d at1295-1296). Moreover, our review of the grand jury minutes demonstrates that thetestimony of this witness was limited in scope and was not so significant as to affect thegrand jury's determination, particularly when considered in the context of the testimonyof several other witnesses who provided more significant evidence. Finally, we note thatthe grand jury's vote to indict defendant was unanimous, and that defendant's argumentthat the grand juror who knew the witness might have influenced the rest of the grandjury is premised solely upon speculation. Based "on the particular facts of [this] case,including the weight and nature of the admissible proof adduced to support theindictment and the degree of inappropriate prosecutorial influence or bias," we find thatthe motion to dismiss the indictment was properly denied (People v Huston, 88NY2d at 409; see People v Farley, 107 AD3d at 1295-1296; compare Peoplev Revette, 48 AD3d at 887-888).
Defendant next contends that County Court erred in discharging a juror who becameill during the trial. A sworn juror may be discharged in such circumstances when thecourt conducts "a reasonably thorough inquiry" and, as pertinent here, "determines thatthere is no reasonable likelihood" that the juror will be able to resume service "withintwo hours of the time set by the court for the trial to resume" (CPL 270.35 [2] [a]; seePeople v Jeanty, 94 NY2d 507, 514 [2000]). On a Thursday morning early in thetrial, a juror "slumped over" during testimony, having lost consciousness. The jury wasexcused, emergency medical personnel were summoned, and the juror was revived. Afterconsulting with counsel, the court questioned the juror and the EMT who providedtreatment, and allowed defense counsel an opportunity to also ask questions. It wasestablished that the juror was suffering from "flu or some kind of bug" that he thought hehad caught from a potential juror who had earlier been excused. After feeling ill onMonday, the juror had reported to a court employee on Tuesday that he was not feelingwell and was not sure whether he could continue. The juror returned to court onWednesday and Thursday, although he continued to feel ill, and had been limiting hisintake of food and water because he did not want his symptoms to interrupt the trial. TheEMT stated that the juror was still ill, that his condition might be contagious, that hislapse of consciousness could recur, and that the EMT could not estimate when the jurormight be well enough to continue. The EMT recommended that the juror should betransported to a hospital emergency room for treatment, but the juror decided to consulthis own doctor instead. The court allowed the juror to depart, and directed that he calllater to find out whether he should return.
Approximately an hour after the juror's condition was discovered, County Courtdecided, over defendant's objection, to discharge the juror and replace him with analternate. In rendering this decision, the court noted that the juror had missed anunknown amount of testimony before his loss of consciousness was noticed and, givenhis illness, might not have been fully alert the day before (see CPL 270.35 [2][b]). The court further found that it was not possible to ascertain when the juror wouldrecover, but that it was clear that he would not do so imminently. Finally, the court notedthe concern that the illness could spread to other jurors. Contrary to defendant'sargument, CPL 270.35 (2) (a) did not require the court to wait two hours after the juror'sdeparture before making this determination in these circumstances. The court conducteda reasonably thorough inquiry. This provided a sound basis for the conclusion that therewas no reasonable likelihood that the juror would be able to return within two hours after[*3]the trial resumed. Thus, the court did not abuse its"significant discretion" in discharging the juror (People v Jeanty, 94 NY2d at516-517; see People v Cruz,48 AD3d 205, 206 [2008], lv denied 10 NY3d 957 [2008]).
County Court properly found that defendant did not have standing to contest thesearch of his mother's apartment. It was defendant's burden to show that he had standing,which exists when a defendant has "a legitimate expectation of privacy in the searchedpremises" (People v Jones,155 AD3d 1103, 1105 [2017] [internal quotation marks and citation omitted], lvdenied 30 NY3d 1106 [2018]; see People v Tejada, 81 NY2d 861, 862[1993]; People v Wesley, 73 NY2d 351, 358-359 [1989]). The suppressionhearing testimony established that defendant's mother leased the apartment and that,although defendant had previously stayed there, he was not permitted to live there by theowner. After being warned several times that the mother could be evicted due to hispresence, defendant told the property manager that he was moving out. He was seenremoving his belongings and thereafter applied for temporary public housing as he couldno longer reside with his mother. The mother, who was out of state at the time of thecrime, told police by telephone that defendant was not permitted to spend the night in theapartment, although she allowed him to enter during the day to get his belongings.Defendant had no keys to the apartment, and there was no evidence that he paid rent orshared other expenses. A relative testified that defendant had been able to gain access tothe apartment on the night of the crime because a neighbor had lent him a key. Defendantdid not establish that he had a legitimate expectation of privacy as an overnight guest inthe apartment, as he was not "there with the permission of his host" (Minnesota vOlson, 495 US 91, 99 [1990]; see generally People v Wiggins, 126 AD3d 1229,1231-1232 [2015]). Given the undisputed evidence that he was forbidden to reside in theapartment or to spend the night there, defendant did not establish that his familyrelationship with the mother or any other circumstances gave rise to a sufficientconnection to the premises to establish a legitimate expectation of privacy therein (seePeople v Ponder, 54 NY2d 160, 164-166 [1981]; People v Hornedo, 303AD2d 602, 602 [2003], lv denied 100 NY2d 595 [2003]; People vWalker, 150 AD2d 408, 408-409 [1989], lv denied 74 NY2d 853[1989]).
Defendant failed to preserve his claims that he was denied a fair trial as a result ofimproper comments during the prosecutor's summation (see People v Scippio, 144AD3d 1184, 1187-1188 [2016], lv denied 28 NY3d 1150 [2017]) and thatCounty Court failed to give a circumstantial evidence charge (see People v Ash, 162 AD3d1318, 1322 [2018], lv denied 32 NY3d 1002 [2018]). We are unpersuadedby defendant's assertion that these preservation failures deprived him of the effectiveassistance of counsel. The challenged prosecutorial remarks were fair comments on theevidence (see People vHopkins, 56 AD3d 820, 821 [2008]; People v Grady, 40 AD3d 1368, 1374 [2007], lvdenied 9 NY3d 923 [2007]), we find no error in the jury charge (see People v Wlasiuk, 136AD3d 1101, 1104-1105 [2016], lv denied 27 NY3d 1009 [2016]), andrefraining from making motions or requests for relief that would be futile does notconstitute ineffective assistance (see People v Caban, 5 NY3d 143, 152 [2005]). Viewed inits totality, the record reveals that counsel's representation was vigorous and cohesive andthat defendant received meaningful representation (see generally People v Baldi,54 NY2d 137, 147 [1981]).
McCarthy, Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.