| People v Silver |
| 2019 NY Slip Op 00328 [168 AD3d 1225] |
| January 17, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Riis Matthew Silver, Also Known as Flea, Also Known as Flee,Appellant. |
Cliff Gordon, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered April 15, 2016, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree (two counts) and reckless endangerment in the firstdegree.
Defendant was charged in a four-count indictment with two counts of criminal possession ofa weapon in the second degree, one count of attempted assault in the first degree and one countof reckless endangerment in the first degree stemming from allegations that he possessed anunlicensed loaded firearm and fired seven shots at Claudette Paschall (hereinafter the victim).After a pretrial hearing, County Court ruled, among other things, that the People would bepermitted to introduce evidence of a prior bad act of defendant involving the victim. After trial,the jury acquitted defendant of attempted assault in the first degree, but found him guilty on theremaining charges. Defendant was thereafter sentenced to concurrent prison terms of 15 yearsfollowed by five years of postrelease supervision on each weapon possession conviction and2
Turning first to defendant's Molineux challenge, we find that County Court did notabuse its discretion in permitting the victim to testify that, immediately prior to the shooting, sheconfronted defendant, who was standing in front of a store with other men, and accused him ofstealing $1,500 from her during their brief relationship. Such evidence was relevant toestablishing motive, was inextricably interwoven into the facts underlying the charges, completedthe narrative of what occurred, provided necessary background information and was moreprobative than prejudicial (see People vRichardson, 162 AD3d 1328, 1330-1331 [2018], lv denied 32 NY3d 1128[2018]; People v Palin, 158 AD3d936, 941 [2018], lv denied 31 NY3d 1016 [2018]; People v Victor, 139 AD3d 1102,1109-1110 [2016], lv denied 28 NY3d 1076 [2016]).
We turn next to defendant's argument that County Court erred in denying his request for amistrial during re-direct examination of the victim when the People improperly inquired as towhether she knew if any of the men standing with defendant were gang members. Defendantobjected and the victim did not answer the People's question. County Court immediately excusedthe jurors and advised them not to speculate as to the reasons, instead noting that there weresome legal matters to discuss. During the ensuing conference, the court chastised the prosecutorand discussed with the parties how to cure any potential prejudice, noting that the prejudice hadbeen minimized because the witness did not answer the question and the jury was told not tospeculate as to what was happening. The court indicated that, if defendant wished, it would givean additional curative instruction. Defendant moved for a mistrial, which the court denied, andsubsequently denied the court's offer of additional curative instructions.
Generally, "the decision to grant or deny a motion for a mistrial is within the trial court'sdiscretion and its decision will not be disturbed unless it amounts to an abuse of discretion" (People v Newkirk, 75 AD3d 853,856 [2010] [internal quotation marks and citation omitted], lv denied 16 NY3d 834[2011]; see People v Manning, 81AD3d 1181, 1183 [2011], lv denied 18 NY3d 959 [2012]). Here, not only was theinherent prejudice of the People's question blunted by the fact that it remained unanswered, butCounty Court's swift action and simple instructions to the jury also limited this prejudice.Accordingly, we do not find that defendant was deprived of a fair trial and, as such, the court'sdenial of defendant's motion was not an abuse of discretion (see People v Turcotte, 124 AD3d 1082, 1084 [2015], lvdenied 25 NY3d 1078 [2015]; People v Newkirk, 75 AD3d at 856).
Likewise, County Court properly declined to discharge the jury as deadlocked and declare amistrial. "The decision to declare a mistrial [based upon a deadlocked jury] necessarily rests inthe broad discretion of the [t]rial [court, which] is best situated to take all the circumstances intoaccount and determine whether a mistrial is in fact required in a particular case" (Matter ofPlummer v Rothwax, 63 NY2d 243, 250 [1984] [citations omitted]; see People v Wilson, 163 AD3d1049, 1050-1051 [2018]). Among the factors that the court should consider are "the lengthand complexity of the trial, the length of the deliberations, the extent and nature of thecommunications between the court and the jury, and the potential effects of requiring furtherdeliberation" (Matter of Plummer v Rothwax, 63 NY2d at 251; accord People vWilson, 163 AD3d at 1051).
During deliberations, County Court received a note that indicated that the jury was unable toagree on a unanimous verdict. Without objection from either party, the court subsequentlyprovided the jury with an Allen charge, after which deliberations continued. Thereafter,another note was received, stating that "after continued deliberation[,] we remain at impasse andbelieve it [is] highly unlikely we can achieve a unanimous decision." The court conferenced withthe parties, at which time defendant argued that the jury was given enough time and, as such, amistrial was appropriate. The court, however, expressed that, although the jury had beendeliberating for nine hours over the course of two days, the jury had not indicated that it was"hopelessly deadlocked" and that it was appropriate for the court to poll the individual jurors todetermine whether further deliberation might lead to a unanimous decision. During a brief30-minute recess to allow the attorneys to confer with their superiors, the court received anothernote stating that the jury had reached a unanimous verdict. Given these circumstances, despite thejury having deliberated for approximately nine hours and twice expressing its inability to reach aunanimous decision, we do not find that it was an abuse of discretion for the court to refuse todeclare a mistrial because, as is clear from the jury reaching a verdict such a short time later, thejury was not deadlocked (see People vHardy, 26 NY3d 245, 251-252 [2015]; Matter of Plummer v Rothwax, 63 NY2dat 250-251).
Finally, we are unpersuaded that County Court's imposition of the maximum allowablesentence was harsh or excessive. It is evident from the record that the court considered manyfactors in imposing the maximum sentence, including the danger in which defendant placed theunarmed victim and innocent bystanders when he fired seven shots from a gun that he illegallypossessed at or near her on a public street in broad daylight. The court also considereddefendant's personal and family history, expressly noting his complete lack of remorse and regretas well as his failure to accept responsibility (see People v Brown, 281 AD2d 700, 702[2001], lv denied 96 NY2d 826 [2001]). We find no merit in defendant's unsupportedcontention that the court improperly considered, as an additional aggravating factor, defendant'smembership in a gang. Nor do we agree that it was error for the court to consider a statementmade by defendant, in the absence of a Miranda warning, to a correction officer duringthe jail intake process regarding defendant's gang affiliation. Despite defendant's contention tothe contrary, even if such a statement were to be subject to suppression, the court could stillconsider it at the time of sentencing (cf. People v Brown, 281 AD2d at 702; People vSmith, 272 AD2d 713, 716 [2000], lv denied 95 NY2d 871 [2000]; People vMancini, 239 AD2d 436, 436 [1997], lv denied 90 NY2d 907 [1997]). Therefore, inthe absence of an abuse of discretion or extraordinary circumstances, we decline to disturbdefendant's sentence (see People vAsh, 162 AD3d 1318, 1323 [2018], lv denied 32 NY3d 1002 [2018]; People v Nunez, 160 AD3d 1227,1230 [2018]).
Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.