| People v Kirkley |
| 2019 NY Slip Op 03703 [172 AD3d 1541] |
| May 9, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keion Kirkley, Appellant. |
John Ferrara, Monticello, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered February 1, 2017, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fourth degree.
Police officers conducted a controlled buy in which a confidential informant (hereinafter CI)purchased cocaine from a seller outside defendant's residence, a first-floor apartment thatdefendant shared with a housemate. Thereafter, police obtained a warrant to search theapartment, asserting, among other things, that the seller—who was notdefendant—met the CI outside defendant's residence, entered the apartment to obtain thecocaine and returned outside to supply it to the CI. In the ensuing search, police found crackcocaine, a firearm and items associated with the sale of drugs. Defendant was charged withcriminal possession of a weapon in the third degree, criminal possession of a controlledsubstance in the third degree, and criminal possession of a controlled substance in the fourthdegree. Following a jury trial, he was acquitted of criminal possession of a weapon in the thirddegree and convicted of the remaining charges. Defendant absconded during jury deliberationsand was returned by the United States Marshals Service before sentencing. He was sentenced totwo concurrent prison terms of five years, followed by two years of postrelease supervision.Defendant appeals.
Before the trial, the People moved for a protective order that would preserve the CI'sconfidentiality by permitting defense counsel to view a video recording of the controlled buywhile precluding counsel from informing defendant of the CI's identity (see CPL 240.50[1]). County Court granted the request and directed the People to permit defense counsel to viewthe video before a scheduled suppression hearing. Defendant now argues that this order violatedhis constitutional right to confront witnesses, asserting that he should have been allowed to viewthe video so that he could identify the seller who participated in the controlled buy. Thatargument, however, was raised for the first time upon this appeal. At the suppression hearing,defense counsel acknowledged that he had viewed the video and did not argue that defendantshould be permitted to view it. Accordingly, this claim is unpreserved for review (seeCPL 470.05 [2]; People v Davis,144 AD3d 1188, 1190 [2016], lv denied 28 NY3d 1144 [2017]).
Defendant's related claim that County Court erred in failing to hold a Darden hearingis without merit. Such a hearing is required " 'where there is insufficient evidence toestablish probable cause apart from the testimony of the arresting officer as to communicationsreceived from [a CI and] when the issue of identity of the [CI] is raised at the suppressionhearing' " (People v Farrow, 98 NY2d 629, 631 [2002], quoting People vDarden, 34 NY2d 177, 181 [1974]; see People v Anderson, 104 AD3d 968, 971 [2013], lvdenied 21 NY3d 1013 [2013]). Here, defendant's omnibus motion included a request for aDarden hearing, which the court initially granted. However, after learning that defensecounsel had seen the video of the controlled transaction, the court reversed its prior decision anddeclined to hold the hearing. Notably, defendant's arguments in favor of a Darden hearingdid not include any challenge to the CI's existence.[FN1] Defendant now argues that a Dardenhearing was required to confirm the existence of a different CI and a confidential source who alsoprovided information that was included in the search warrant application. However, this assertionwas raised for the first time upon this appeal and is therefore unpreserved for review (seePeople v Edwards, 95 NY2d 486, 493 [2000]; People v Jenkins, 38 AD3d 230, 231 [2007], lv denied 8NY3d 986 [2007]). Even if the claim had been properly before us, we would not have found thatit had merit, as the recording of the controlled buy provided probable cause for the search warrantwithout regard to the other information in the application (see People v Crooks, 27 NY3d 609, 615 [2016]).[FN2]
County Court did not deprive defendant of his right to be represented by the counsel of hischoice by denying his request to adjourn the suppression hearing to allow him time to retainprivate counsel. Defendant was represented by the Public Defender's office until July 2016, whenhis counsel moved to be relieved because recent discussions with the prosecutor had revealedthat one of the CIs was also represented by the Public Defender's office. The court immediatelyappointed substitute counsel, who was present at that time and received a full copy of defendant'sfile. Just under three weeks later, at an appearance two days before the scheduled suppressionhearing, substitute counsel told the court that defendant was requesting an adjournment of thesuppression hearing to give him time to hire private counsel. The court denied the request,advising defendant that he was free to hire private counsel if he so chose, but that the hearingwould take place as scheduled.
"Criminal defendants have a constitutional right to be represented by counsel of their ownchoosing and 'must be accorded a reasonable opportunity to select and retain' such counsel" (People v Sapienza, 75 AD3d 768,770 [2010], quoting People v Arroyave, 49 NY2d 264, 270 [1980]). Nevertheless, "arequest to change counsel previously retained or assigned must be addressed to the trial court'sdiscretion to insure that the defendant's purported exercise of the right does not serve to delay orobstruct the criminal proceedings" (People v Orminski, 108 AD3d 864, 865 [2013] [internal quotationmarks, brackets and citation omitted], lv denied 22 NY3d 958 [2013]; accord People v Miller, 166 AD3d1385, 1387 [2018], lv denied 32 NY3d 1207 [2019]). We reject defendant'scontention that the People may have delayed unduly in informing the Public Defender's office ofthe conflict, as it is based solely on speculation. Defendant was at liberty throughout thethree-week period between the change in his representation and the suppression hearing, and hasoffered no reason why he could not retain private counsel during that time. Notably, after thedenial of his request, defendant never reiterated his desire to obtain different representation, andhe continued to be represented by substitute counsel thereafter. Thus, County Court did not abuseits discretion in refusing to adjourn the hearing (see People v Miller, 166 AD3d at 1387;People v Singleton, 163 AD3d1272, 1273 [2018]; People v Orminski, 108 AD3d at 866).
We find no merit in defendant's claim that County Court improperly denied hisBatson challenges with respect to two prospective jurors. The three-step procedure that atrial court must follow in response to a Batson challenge is well established. "At step one,the moving party bears the burden of establishing a prima facie case of discrimination in theexercise of peremptory challenges. Once a prima facie case of discrimination has beenestablished, the burden shifts, at step two, to the nonmoving party to offer a facially neutralexplanation for each suspect challenge. At the third step, the burden shifts back to the movingparty to prove purposeful discrimination and the trial court must determine whether the profferedreasons are pretextual" (People vHecker, 15 NY3d 625, 634-635 [2010] [internal quotation marks and citations omitted];accord People v Jones, 136 AD3d1153, 1157-1158 [2016], lv dismissed 27 NY3d 1000 [2016]; see People v Green, 141 AD3d1036, 1038-1039 [2016], lv denied 28 NY3d 1072 [2016]). Here, defendant basedhis Batson claim on the People's use of peremptory challenges to remove juror No. 17and juror No. 19, arguing that they were the only African-American prospective jurors on thepanel.[FN3] In response,County Court directed the People to offer race-neutral reasons for the challenge, thus reachingstep two of the Batson process. On appeal, defendant asserts that the court erred at thethird step of the Batson procedure and should have found that both challenges were basedon purposeful discrimination.
Turning first to juror No. 17, County Court had previously denied the People's challenge forcause, in which the People questioned the prospective juror's impartiality based upon hertestimony that she was close to an incarcerated relative and her hesitance in answering questions.The court denied the challenge for cause as the prospective juror had stated that she could beimpartial. Following defendant's Batson challenge, the People reiterated these concernsand further noted that the juror had "struggled to answer questions generally," had hesitatedbefore stating that she could be impartial and had described herself as "shocked" by the handlingof her relative's case. The People also distinguished juror No. 17 from another prospective jurorwho also had an incarcerated relative, but who was not close to the relative and had stronglyconfirmed that she could be impartial. These explanations met the requirement of facialneutrality, as they were " 'based on something other than the race of the juror' "(People v Hecker, 15 NY3d at 655, quoting Hernandez v New York, 500 US 352,360 [1991]). It thus became defendant's burden to persuade the court that the stated reasons werepretextual and to make a record that would support that conclusion (see People vSmocum, 99 NY2d 418, 422 [2003]; People v Acevedo, 141 AD3d 843, 846 [2016]).
Defense counsel argued that juror No. 17 was honest and forthcoming and that her hesitanceresulted from nervousness rather than from partiality. When County Court pressed counsel tostate a specific basis for his claim of purposeful discrimination, counsel argued thatdiscrimination was shown by the nature of the case, the makeup of the jury and the fact that thePeople had exercised only five peremptory challenges, two of them against African-Americanprospective jurors.[FN4]
The trial court's responsibility in the third step of the Batson process is "to make anultimate determination on the issue of discriminatory intent based on all of the facts andcircumstances presented" (People v Smocum, 99 NY2d at 422; see People v Molineaux, 156 AD3d1250, 1252 [2017], lv denied 31 NY3d 1085 [2018]). Here, County Court notedjuror No. 17's close relationship to her incarcerated relative and found that "it was fundamentallyclear . . . that she was struggling with being a juror in this case." The court wasentitled to take into account "its own observations of the jurors and counsel" (People v Knowles, 79 AD3d 16,23 [2010], lv denied 16 NY3d 896 [2011]). According the requisite "great deference" tothe court's resolution of this factual issue, we find no basis to disturb its determination(People v Hecker, 15 NY3d at 656; see People v Green, 141 AD3d at 1040).
Turning to juror No. 19, we find no error in County Court's determination. As race-neutralreasons for this peremptory challenge, the People stated that they intended to strike anyprospective juror who was "overly sympathetic" or who had "an involved history with drugusers," and noted that juror No. 19 had worked with large numbers of drug addicts in her role as ahuman services counselor. We agree with County Court that the People thus satisfied theirburden to offer a race-neutral explanation (see People v Knowles, 79 AD3d at 20).Defense counsel's only response was, in effect, a concession; he stated that he "underst[ood] thePeople's position" and made no argument that the stated reason was pretextual. Thus, "he did notmeet his ultimate burden of showing that the reasons given were merely a pretext for intentionaldiscrimination" (People v Skervin,13 AD3d 661, 662 [2004], lv denied 5 NY3d 833 [2005]; see People vKnowles, 79 AD3d at 21).
Finally, County Court properly proceeded with jury deliberations after defendant failed toappear in court. A criminal defendant has a constitutional and statutory right to be present at hisor her trial (see US Const 6th Amend; NY Const, art I, § 6; CPL 260.20;People v Parker, 57 NY2d 136, 139 [1982]). However, that right may be forfeited and adefendant may be tried in absentia when he or she voluntarily fails to appear after attending partof the trial (see Taylor v United States, 414 US 17, 20 [1973]; People v Sanchez,65 NY2d 436, 443-445 [1985]). Such a forfeiture occurs by operation of law and is distinct froma waiver, "which involves an evaluation of [the] defendant's state of mind" (People vSanchez, 65 NY2d at 443 n; see People v McKinnies, 144 AD2d 178, 179 [1988],lv denied 73 NY2d 858 [1988]). Thus, defendant's arguments based upon hisunderstanding of the Parker warnings given at arraignment and the court's alleged failureto repeat the warnings during the trial are not pertinent.
Before a defendant who has forfeited the right to be present may be tried in absentia, the trialcourt must conduct an appropriate inquiry into the surrounding facts and circumstances and, if itdetermines that the defendant's absence is deliberate, "recite[ ] on the record the facts and reasonsit relied upon" (People v Brooks, 75 NY2d 898, 899 [1990]; see People v June, 116 AD3d1094, 1095 [2014]). Defendant was present for jury instructions on the morning of hisdisappearance and returned after deliberations began, when County Court received a jury note.However, he failed to appear later that day, when the court received additional jury notes. Uponthe court's inquiry, defense counsel stated that he had made several unsuccessful attempts toreach defendant by telephone, that his office staff had also done so, and that a relative ofdefendant's who was present at the courthouse had also repeatedly tried to call him. None ofthese calls had been answered. Counsel stated that, based upon his conversation with the relative,it was his understanding that defendant did not intend to return. In response to furtherquestioning from the court, counsel confirmed that a group of defendant's supporters haddeparted in a vehicle, but stated that he did not know whether defendant was with them.
County Court found that defendant was aware that the trial was in progress and that heshould be present, and that he had communicated through his family members that he did notintend to return. The court further found that there was no indication that defendant wasincapacitated or that there was some other legitimate reason for his absence. After instructing thejury that it was to draw no inference from defendant's absence, the court continued the trial.Contrary to defendant's claims, we find that the court's inquiry was sufficient under thecircumstances presented, that it reasonably determined that defendant's absence was deliberateand that it did not err in continuing the trial in his absence (see People v Redzeposki, 7 NY3d 725, 726 [2006]; People v Gooley, 156 AD3d 1231,1233-1234 [2017], lv denied 31 NY3d 984 [2018]; People v Reed, 148 AD2d809, 810 [1989]).
Mulvey, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant argued that an incamera appearance by the CI was required because the video did not conclusively establish thatdrugs changed hands. Defendant's appellate brief includes no arguments related to this claim, andwe deem any such issues to be abandoned (see generally People v Williams, 24 AD3d 879, 880 [2005], lvdenied 6 NY3d 820 [2006]).
Footnote 2:Defendant's additional claim thatpolice violated CPL 690.50 (5) by failing to file the search warrant inventory until 10 monthsafter the search is unpreserved for our review (see CPL 470.05 [2]).
Footnote 3:The voir dire transcript does notdistinguish among the various prospective jurors, identifying all of their responsesinterchangeably with the designation "PROSPECTIVE JUROR." We note that this practicecomplicates appellate review, as it compels this Court to rely upon context and the parties'arguments to identify the pertinent portions of the transcript, and thus may result in confusion.
Footnote 4:Defendant now also argues thatdiscriminatory intent was shown by the People's failure to challenge the other prospective jurorwith an incarcerated relative, but this contention is unpreserved for our review (see generallyPeople v James, 99 NY2d 264, 271-272 [2002]).