| People v Weaver |
| 2018 NY Slip Op 08715 [167 AD3d 1238] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jaushi'ir Weaver, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 31, 2016, upon a verdict convicting defendant of the crimes of murder in thesecond degree and criminal possession of a weapon in the second degree.
During the early morning hours of May 5, 2015, defendant, then age 16, and codefendantMark Bowman shot into a crowd of people gathered outside of a residential building in the Cityof Albany in an effort to avenge the murder of Bowman's cousin. Two of the individuals presentin the group were struck and injured, and a third victim was fatally wounded by a bulletforensically determined to have been fired from the gun found upon defendant when he wasapprehended by police just minutes later. Defendant and Bowman, along with their get-awaydriver, were thereafter arrested and charged by indictment with various crimes in connection withthe shooting. Following a joint Huntley hearing, County Court denied defendant's motionto suppress the statements he made to police and severed his case from that of his codefendants.At the ensuing jury trial, defendant raised the affirmative defense of duress and testified in hisown defense. Defendant admitted that he repeatedly fired the gun in the direction of where thegroup of people were gathered, but claimed that Bowman had directed him to do so andthreatened to shoot him and his family if he did not do as he was told. The jury rejected theduress defense and convicted defendant of murder in the second degree and criminal possessionof a weapon in the second degree. Sentenced to 22 years to life in prison for the murderconviction and a concurrent 15-year prison term for the weapon conviction, defendant nowappeals.
Defendant first alleges the existence of unspecified defects in the grand jury proceeding. Asthe sufficiency of the trial evidence has not been challenged, it is presumed legally sufficient and,as a result, any "challenges to the grand jury proceeding are precluded to the extent they involvethe sufficiency of the evidence presented or the instructions given to the grand jury" (People v Secor, 162 AD3d 1411,1413 [2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 941[2018]; see People v Smith, 4 NY3d806, 808 [2005]; People vRoulhac, 166 AD3d 1066, 1067 [2018]; People v Robinson, 156 AD3d 1123, 1128 n 8 [2017], lvdenied 30 NY3d 1119 [2018]). Our review of the grand jury minutes otherwise fails to revealthe existence of any defects that impaired the integrity of the grand jury or prejudiced defendantso as to warrant the drastic remedy of dismissal of the indictment (see People v Wisdom, 23 NY3d970, 972 [2014]; People v Secor, 162 AD3d at 1413; People v Fields, 160 AD3d 1116,1118 n 1 [2018], lv denied 31 NY3d 1116 [2018]).
Defendant next claims that County Court erred in denying his application, made on the eveof trial, for funds to hire a psychological expert to examine him and testify relative to his duressdefense. To succeed on a motion for funds pursuant to County Law § 722-c, it wasincumbent upon defendant "to show that he was indigent, that the service was necessary to hisdefense and, if the compensation he sought exceeded the statutory limit of $1,000, thatextraordinary circumstances justified the expenditure" (People v Clarke, 110 AD3d 1341, 1342 [2013], lv denied22 NY3d 1197 [2014]; see People vBrand, 13 AD3d 820, 821 [2004], lv denied 4 NY3d 851 [2005]). Here,defendant's application sought funds for the purpose of securing expert testimony to explain whyhe "would succumb to the pressure of an older, more dominant male in his peer group." Althoughsuch testimony may well have been helpful to defendant's duress defense, he failed todemonstrate a "distinct necessity" for the assistance of an expert to aid the jury in resolving thatissue (People v Dove, 287 AD2d 806, 807 [2001]; accord People v Clarke, 110AD3d at 1342; see People vCasiano, 40 AD3d 528, 529 [2007], lv denied 9 NY3d 990 [2007]; People vGallow, 171 AD2d 1061, 1062-1063 [1991], lv denied 77 NY2d 995 [1991];People v Wright, 161 AD2d 743, 743 [1990]; cf. People v Cronin, 60 NY2d 430,433 [1983]). Moreover, defendant was able to present his duress defense through his own trialtestimony and to expound upon it through his cross-examination of witnesses and closingarguments to the jury (see People v Gallow, 171 AD2d at 1062-1063; compare People v Rodriguez, 6 AD3d814, 817-818 [2004]). We further note that "the application made no claim or showing ofextraordinary circumstances, nor did it indicate whether the compensation sought would exceed$1,000 or detail the time to be spent" by the expert (People v Clarke, 110 AD3d at 1342;see People v Dearstyne, 305 AD2d 850, 852-853 [2003], lv denied 100 NY2d 593[2003]; People v Dove, 287 AD2d at 807). In light of the foregoing, we cannot say thatCounty Court abused its discretion in denying defendant's application.
We are similarly unconvinced that County Court erred in refusing to suppress certainstatements that defendant made to police during his recorded interrogation. Defendant does notdispute that he validly waived his Miranda rights at the outset of the interview, butcontends that his waiver was rendered ineffective by subsequent police conduct during the courseof the interrogation. Having failed to raise this specific argument in his motion papers or at theHuntley hearing as a ground for suppression, defendant did not preserve the issue for ourreview (see People v Schluter, 136AD3d 1363, 1363 [2016], lv denied 27 NY3d 1138 [2016]; People v Johnson, 117 AD3d 637,638 [2014], lv denied 26 NY3d 930 [2015]). In any event, the Court of Appeals hasrejected the "novel theory" now advanced by defendant—that is, "that the validity of the[Miranda] waiver [could be] vitiated by police misconduct that occurred after thewaiver" (Matter of Jimmy D., 15NY3d 417, 424 [2010]). Where, as here, a defendant's "Miranda rights were validlywaived and never reinvoked, the issue is voluntariness, not waiver" (id.).[FN*]
Whether defendant's statements were voluntary—an issue that was properlypreserved—is to be determined "by examining the totality of the circumstances underwhich [they were] obtained" (People vMoore, 162 AD3d 1123, 1126 [2018]; see Dickerson v United States, 530 US428, 434 [2000]; People v Guilford,21 NY3d 205, 208 [2013]). Upon our review of the recorded interview and the testimonyadduced at the Huntley hearing, we conclude that the People satisfied their burden ofdemonstrating the voluntariness of defendant's statements beyond a reasonable doubt (see People v Thomas, 22 NY3d629, 641 [2014]; People vCummings, 157 AD3d 982, 985 [2018], lv denied 31 NY3d 982 [2018]).
The circumstances and atmosphere of the interview fail to demonstrate involuntariness.Although defendant was detained for approximately 16
Nor are we persuaded that certain assurances of confidentiality by the police during thecourse of the interrogation rendered defendant's ensuing statements involuntary under eitherconstitutional (see CPL 60.45 [2] [b] [ii]; Arizona v Fulminante, 499 US 279[1991]) or statutory standards (see CPL 60.45 [2] [b] [i]). A little more than an hour intothe interview, defendant admitted to detectives that he fired the gun into the crowd of peoplegathered across the street. The questioning that followed was aimed at ascertaining the identity ofthe other shooter, who was depicted on video surveillance taken from a City-owned pole camera.During the course of that questioning, one of the detectives stated to defendant that "thisconversation is in this room." This detective made a similar assurance to defendant several hourslater. He also made statements to the effect that the only way the conversation would "getaround" is if defendant "r[a]n out of [the interrogation] room and [told] people"; that "as far asanyone else is concerned, the only way this conversation is going to get out there is if you go outand tell them"; and "do you think that [the other detective] and I are [going to] run out and tellpeople?" Eventually, defendant identified Bowman as the other shooter. He also made certainstatements that he claims undermined his duress defense, including that he was neither afraid ofnor threatened by Bowman prior to the shooting.
Despite defendant's protestations to the contrary, we find it apparent from the relevantportions of the interview that the statements regarding confidentiality related only to defendant'sdisclosure of the identity of the other shooter and his expressed fear that his revelation in thatregard would be shared with other members of the community. As previously noted, the firstsuch assurance of confidentiality was made after defendant freely admitted his role in theshooting, and the interrogation thereafter focused almost exclusively on eliciting the identity ofthe second shooter. During that time, defendant repeatedly expressed his fear of being labeled a"rat" and a "snitch" and, at one point, pleaded that he did not want to "make [his life] short" by itbeing "out there" that he gave up the other assailant or spoke with the police generally. Thedetective's express and implied assurances of confidentiality were plainly directedat—and, in all but one instance, were uttered on the heels of—these concernsvoiced by defendant. There is nothing in this record to indicate that defendant—who didnot testify at the Huntley hearing—believed or could reasonably have believed thedetective's statements to mean that any and all statements he made would remain confidential forall purposes.
Even if the detective's statements could be viewed as an unqualified promise not to divulgeany of defendant's subsequent statements, it cannot be said that such a promise gave rise to a"substantial risk that . . . defendant might falsely incriminate himself" (CPL 60.45[2] [b] [i]). Defendant had already implicated himself in the murder, and there is no basis in thisrecord to conclude that the detective's remarks would have deceived defendant into thinking thathe would not be prosecuted or that he would receive lenient treatment (see Matter of JimmyD., 15 NY3d at 424; People vNeal, 133 AD3d 920, 922 [2015], lv denied 26 NY3d 1110 [2016]; People v Lugo, 60 AD3d 867,868-869 [2009]). If anything, the assurances of confidentiality would have induced defendant toprovide truthful statements, not false ones. Indeed, obtaining a truthful identification of the othershooter was the goal of the interrogation. Nor were the detective's assurances "so fundamentallyunfair as to deny due process" (People v Tarsia, 50 NY2d at 11; see People v Fagan, 134 AD3d1232, 1234 [2015]; People vJaeger, 96 AD3d 1172, 1174 [2012], lv denied 19 NY3d 997 [2012])."Deceptive police conduct may be unduly coercive, but only when it is so 'extreme' that itoverbears a defendant's individual will" (People v Scaringe, 137 AD3d 1409, 1412 [2016], lv denied28 NY3d 936 [2016], quoting People v Thomas, 22 NY3d at 642; see People v Jeremiah, 147 AD3d1199, 1203 [2017], lv denied 29 NY3d 1033 [2017]). The detective's statementsregarding confidentiality were not so "highly coercive" as to nullify defendant's judgment oroverbear his will (People v Thomas, 22 NY3d at 642; see Rogers v Richmond,365 US 534, 544 [1961]; People v Jeremiah, 147 AD3d at 1203; People vScaringe, 137 AD3d at 1412; People v Neal, 133 AD3d at 922; People v Pouliot, 64 AD3d 1043,1044 [2009], lv denied 13 NY3d 838 [2009]; People v McLean, 59 AD3d 861, 863 [2009], affd 15 NY3d117 [2010]). Considering the totality of the circumstances, the record supports the conclusionthat defendant's statements resulted from his "free and unconstrained choice" (People vThomas, 22 NY3d at 641 [internal quotation marks and citation omitted]; see People vJeremiah, 147 AD3d at 1203; People v Cruz, 138 AD3d 1310, 1312 [2016]; People vScaringe, 137 AD3d at 1412; People v Neal, 133 AD3d at 922).
Defendant also claims that County Court should have charged manslaughter in the seconddegree as a lesser included offense of second degree murder. However, he did not request that thecourt charge the lesser included offense or object to the jury charge as given (see People v Dorsey, 151 AD3d1391, 1395 [2017], lv denied 30 NY3d 949 [2017]; People v Bost, 139 AD3d 1317,1321 [2016]). Nor did County Court "expressly decide[ ]" the issue "in re[s]ponse to a protest bya party" (CPL 470.05 [2]). Instead, the record reflects that defense counsel was indecisive aboutwhether he wanted manslaughter in the second degree to be submitted as a lesser includedoffense, and that County Court subsequently expressed its opinion that such a submission wouldbe inappropriate under the facts of this case. Defendant did nothing to register any disagreementwith that view. Accordingly, defendant's contention in this regard is both waived (seeCPL 300.50 [1]; People v Young,152 AD3d 981, 984 [2017], lv denied 30 NY3d 955 [2017]) and unpreserved for ourreview (see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Galeano, 111 AD3d 537,537-538 [2013]; People v Alvarez,51 AD3d 167, 180 [2008], lv denied 11 NY3d 785 [2008]; People v Jones,265 AD2d 159, 160 [1999], lv denied 94 NY2d 824 [1999]). We decline defendant'srequest to take corrective action in the interest of justice, particularly given that "the decision torequest or consent to the submission of a lesser included offense is often based on strategicconsiderations, taking into account a myriad of factors, including the strength of the People'scase" (People v McGee, 20 NY3d513, 519 [2013]; see People vBaker, 14 NY3d 266, 272-273 [2010]; People v Lane, 60 NY2d 748, 750[1983]).
Defendant's remaining arguments are unavailing. With respect to his claim of ineffectiveassistance of counsel, defense counsel gave cogent opening and closing statements, madeappropriate pretrial motions, registered timely objections, effectively cross-examined the People'switnesses, pursued a viable, albeit unsuccessful, duress defense and otherwise zealouslyrepresented defendant. Our review of the record as a whole confirms that, "despite any isolatedand discrete shortcomings in counsel's performance," defendant received meaningfulrepresentation (People v Rivers, 152AD3d 1054, 1058 [2017] [internal quotation marks, brackets, ellipsis and citation omitted],lv denied 30 NY3d 1063 [2017]; see People v Blake, 24 NY3d 78, 81 [2014]; People v Richardson, 162 AD3d1328, 1332-1333 [2018]; People vAlberts, 161 AD3d 1298, 1305-1306 [2018], lv denied 31 NY3d 1114 [2018]).Finally, despite his youth and lack of an adult criminal history, we do not agree with defendantthat his sentence was harsh and excessive. The sentence imposed was less than the maximumallowable and reflected the seriousness of defendant's conduct in shooting a gun into a crowd,which resulted in the senseless death of one individual and endangered the lives of numerousothers. Considering all of the relevant circumstances, including the nature of the crimes forwhich defendant stands convicted and the devastating impact of his conduct on the victim andthe victim's family, we find no abuse of discretion or extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Vanderhorst, 117 AD3d 1197, 1201-1202 [2014],lv denied 24 NY3d 1089 [2014]; People v Timmons, 78 AD3d 1241, 1245 [2010], lv denied16 NY3d 837 [2011]).
Egan Jr., J.P., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We note that courts in otherjurisdictions have embraced the theory advanced by defendant (see e.g. People v McKee,2018 Mich App LEXIS 375, *31-35, 2018 WL 1072808, *11-12 [2018]; Leger vCommonwealth, 400 SW3d 745, 750-751 [Ky 2013]; Lee v State, 418 Md 136,156-157, 12 A3d 1238, 1250-1251 [2011]; Spence v State, 281 Ga 697, 698-701, 642SE2d 856, 857-858 [2007]; State v Pillar, 359 NJ Super 249, 262, 268, 820 A2d 1, 8,11-12 [2003]; Hopkins v Cockrell, 325 F3d 579, 584-585 [5th Cir 2003], certdenied 540 US 968 [2003]; State v Stanga, 2000 SD 129, ¶¶ 14-19, 617NW2d 486, 490-491 [2000]). Our highest court has not, however, and we are thereforeconstrained to assess the admissibility of defendant's statements under the traditionalvoluntariness standard.