| People v Hunter |
| 2019 NY Slip Op 03233 [171 AD3d 1534] |
| April 26, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Sean Hunter, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedDecember 17, 2015. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [1]) and two counts of criminal possessionof a weapon in the second degree (§ 265.03 [1] [b]; [3]), defendant contends thatCounty Court deprived him of his right to counsel of his own choosing when the court compelledhis retained attorney to continue representing him even after the attorney informed the court, fourdays before trial, that defendant "fired" the attorney. Defendant further contends that the issueconcerning counsel is a " 'structural error' " that does not require preservation.We need not resolve defendant's latter contention inasmuch as we conclude that defendantpreserved his substantive contention for our review even though he did not personally requestany substitution of counsel (cf. People vHarris, 151 AD3d 1720, 1720 [4th Dept 2017], lv denied 30 NY3d 950[2017]; People v Youngblood, 294 AD2d 954, 955 [4th Dept 2002], lv denied 98NY2d 704 [2002]). With respect to the merits of defendant's substantive contention, we concludethat defendant's constitutional rights were not violated. "Although a defendant has theconstitutionally guaranteed right to be defended by counsel of his [or her] own choosing, thisright is qualified in the sense that a defendant may not employ such right as a means to delayjudicial proceedings" (People v Arroyave, 49 NY2d 264, 271 [1980]). Here, "defendanthad ample opportunity to retain [other] counsel . . . , and he failed to demonstratethat [substitution of counsel on the eve of trial] was necessitated by forces beyond his control andwas not a dilatory tactic" (People vAllison, 69 AD3d 740, 741 [2d Dept 2010], lv denied 14 NY3d 885 [2010]).Moreover, we conclude that the court properly determined "that the reasons cited by counsel didnot warrant his withdrawal from representation and that the court, in denying [counsel's] request,properly 'balance[d] the need for the expeditious and orderly administration of justice against thelegitimate concerns of counsel' " (Harris, 151 AD3d at 1721).
Defendant further contends that the court erred in denying his pretrial request to admit inevidence at trial a recording of an interview conducted by police officers with an individual whohad passed away before trial. We reject that contention. The statements made by the individualconstituted hearsay and did not fall within any exception (see generally People v Brensic,70 NY2d 9, 14 [1987]). Contrary to defendant's contention, the statements do not fall within anexception to the hearsay rule as statements against penal interest inasmuch as the individual wasnot aware, at the time he made his statements, that they were "contrary to his penal interest"(id. at 15). In his interview with police investigators, the individual repeatedly denied anyknowledge of or involvement in the crimes committed by defendant. The investigators, who hadobtained contradictory information from other witnesses, informed the individual that, if hecontinued with his denials, the investigators could charge him with hindering prosecution. Theindividual maintained his ignorance of the crimes and, ultimately, was so charged. It is that threatand the resultant criminal charge that defendant contends transformed the individual's denialsinto statements against penal interest. We do not agree. A person who denies knowledge of orparticipation in a crime is not "reveal[ing] facts that are contrary to his [or her] own interest"(People v Maerling, 46 NY2d 289, 295 [1978]). In any event, we further conclude thatthere is insufficient "competent evidence independent of the [statements] to assure [their]trustworthiness and reliability" (Brensic, 70 NY2d at 15), which is the " 'mostimportant' aspect of the exception" for statements against penal interest (People v Shabazz, 22 NY3d 896,898 [2013]).
Defendant contends in the alternative that, even if the individual's statements do not fallwithin any recognized hearsay exception, they nevertheless should have been admitted inevidence because they were critical to his defense (see generally Chambers v Mississippi,410 US 284, 302 [1973]). Despite the "more lenient admissibility standard" applied to evidencethat is exculpatory to a defendant (People v Conway, 148 AD3d 1739, 1743 [4th Dept 2017], lvdenied 29 NY3d 1077 [2017]), we conclude that the statements do not " '[bear]persuasive assurances of trustworthiness' that would render them admissible despite their hearsaynature" (People v Thibodeau, 151AD3d 1548, 1554 [4th Dept 2017], affd 31 NY3d 1155 [2018], quotingChambers, 410 US at 302).
Contrary to defendant's further contention, the court properly denied his request to instructthe jury on the defense of justification. Although the court erred when it initially concluded thatthe justification charge was not available to defendant because he was also asserting an alibidefense (see People v Steele, 26 NY2d 526, 529 [1970]; see generally People vPadgett, 60 NY2d 142, 144-145 [1983]), the court later recognized that error and denied theinstruction on the ground that there was no reasonable view of the evidence that defendant had areasonable belief that deadly physical force was about to be used against him. We agree with thecourt's latter reasoning. The evidence at trial established that the victim was shot in the back froma distance of 10 to 15 feet and that the victim was crouching and on the phone at the time theshots were fired. Although it was undisputed that the victim held a knife in his hand at the timehe was shot, it was also undisputed that he "never made any movement toward anyone northreatened anyone, including defendant" (People v Moss, 163 AD2d 198, 199 [1st Dept1990], lv denied 76 NY2d 895 [1990]; see generally People v Watts, 57 NY2d299, 302 [1982]).
Defendant failed to preserve for our review his contentions that he was denied a fair trial byvarious courtroom security measures inasmuch as he " 'neither formally objected norrequested any relief' with respect to th[ose] issue[s]" (People v Goossens, 92 AD3d 1281, 1282 [4th Dept 2012], lvdenied 19 NY3d 960 [2012]; seealso People v Johnston, 43 AD3d 1273, 1274 [4th Dept 2007], lv denied 9 NY3d1007 [2007]). We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not undulyharsh or severe, and defendant's further challenge to the sentence lacks merit.Present—Smith, J.P., Lindley, DeJoseph, NeMoyer and Curran, JJ.