| People v Turner |
| 2019 NY Slip Op 04050 [172 AD3d 1768] |
| May 23, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jahci Turner, Also Known as Fats, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered September 6, 2016, upon a verdict convicting defendant of the crimes of recklessendangerment in the first degree, criminal possession of a weapon in the second degree (twocounts), criminal mischief in the fourth degree and endangering the welfare of a child.
In 2015, defendant and another individual were involved in a fist fight outside theindividual's house. After this fight, defendant left, went to a house and got a semiautomatichandgun. Defendant then returned to the individual's house. The individual's sister (hereinafterthe victim), who was born in 2000, was in the kitchen and saw defendant through a kitchenwindow on the street. Defendant fired four shots at the house, one of which struck the window,and the victim took cover. Defendant left but returned later and threw a brick through the kitchenwindow.
In connection with this incident, defendant, on April 8, 2015, was charged by felonycomplaint with attempted murder in the second degree, reckless endangerment in the first degree,criminal possession of a weapon in the fourth degree and endangering the welfare of a child. OnApril 28, 2015, he was charged by indictment with attempted murder in the second degree,reckless endangerment in the first degree and endangering the welfare of a child. The People thendecided to charge defendant with additional crimes and, on October 6, 2015, defendant wascharged by a second indictment with two counts of criminal possession of a weapon in thesecond degree and criminal mischief in the fourth degree. The People also filed a trial readinessletter on October 6, 2015. The indictments were subsequently consolidated upon the People'smotion and, following a jury trial, defendant was acquitted of the charge of attempted murder inthe second degree but convicted of the remaining charges. At sentencing, County Court declinedto grant defendant youthful offender status and sentenced him to various concurrent prison terms,the greatest of which was 15 years to be followed by five years of postrelease supervision.Defendant appeals.
Turning first to defendant's motion to dismiss the October 2015 indictment, such motionmust be granted where the People are not ready for trial within "six months of thecommencement of a criminal action wherein a defendant is accused of one or more offenses, atleast one of which is a felony" (CPL 30.30 [1] [a]). Whether the People have fulfilled theirobligations under CPL 30.30 (1) (a) is "generally determined by computing the time elapsedbetween the filing of the first accusatory instrument and the People's declaration of readiness,subtracting any periods of delay that are excludable under the terms of the statute and thenadding to the result any postreadiness periods of delay that are actually attributable to the Peopleand are ineligible for an exclusion" (People v Cortes, 80 NY2d 201, 208 [1992]; seePeople v Dearstyne, 230 AD2d 953, 954 [1996], lv denied 89 NY2d 921 [1996],lv denied upon reconsideration 89 NY2d 1034 [1997]). "A criminal action is commencedwhen the first accusatory instrument is filed, and includes the filing of all further accusatoryinstruments directly derived from the initial one" (People v Nelson, 68 AD3d 1252, 1253 [2009] [internal quotationmarks and citations omitted]; see Peoplev Bigwarfe, 128 AD3d 1170, 1171 [2015], lv denied 26 NY3d 1038[2015]).
The record reveals that defendant was first charged by felony complaint on April 8, 2015.Taking into account that the date the felony complaint was filed is excluded (see People v Prunier, 100 AD3d1269, 1270 [2012], lv denied 20 NY3d 1064 [2013]), the six-month statutory periodfor the People to declare their readiness for trial expired on October 9, 2015. Given that thePeople filed their trial readiness letter on October 6, 2015, there was no speedy trial violation.Furthermore, because it was possible for defendant to be arraigned within the six-month period(see id. at 1271), the fact that defendant was arraigned with respect to the Octoberindictment on October 13, 2015 did not render the trial readiness letter illusory (see People vGoss, 87 NY2d 792, 796-797 [1996]). Defendant's assertion that the People's statement ofreadiness was illusory because they moved to consolidate the indictments after defendant wasarraigned on the October indictment is unpreserved given that defendant did not seek to dismissthe indictment on that ground. For similar reasons, defendant's claims of postreadiness delay arelikewise unpreserved, and we decline defendant's request to take corrective action in the interestof justice. Defendant's argument that the grand jury's term was impermissibly extended or thatthe grand jury improperly considered new matter after such extension is unpreserved for ourreview and, in any event, is without merit.
Defendant contends that the verdict with respect to the charge of endangering the welfare ofa child was not supported by legally sufficient evidence or, in the alternative, was against theweight of the evidence because the evidence did not demonstrate that he knew that a personunder the age of 17 was present in the house.[FN*] As relevant here, endangering the welfare of achild requires that the People prove that the defendant "knowingly act[ed] in a manner likely tobe injurious to the physical, mental or moral welfare of a child less than [17] years old" (PenalLaw § 260.10 [1]). Where, as here, a different result would not have beenunreasonable, we "weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]).
The record discloses that, approximately two to three hours after defendant fought thevictim's brother, the victim was in the kitchen. The victim testified that she looked through awindow and saw defendant across the street. The victim then heard four gunshots, one of whichhit the window, and took cover behind the refrigerator. About one minute later, the victim got upand saw defendant enter a silver vehicle, which drove away. An individual who was in the silvervehicle testified that defendant got in and said that he shot at the house. A police officer whoassisted in the investigation testified that, as he was on the street looking for shell casings, he hadno difficulty seeing and identifying a detective in the kitchen through the kitchen window.Viewing this evidence in a neutral light, the jury could have reasonably inferred that defendantobserved the victim in the kitchen when he shot at the house. Accordingly, we are satisfied thatthe verdict with respect to the charge of endangering the welfare of a child was supported by theweight of the evidence (see People vWarrington, 146 AD3d 1233, 1237 [2017], lv denied 29 NY3d 1038[2017]).
We reject defendant's assertion that County Court's Molineux ruling permitting thePeople to offer testimony that defendant used a knife while fighting the victim's brother waserroneous. It is well settled that "evidence of uncharged crimes or prior bad acts may be admittedwhere they fall within the recognized Molineux exceptions—motive, intent,absence of mistake, common plan or scheme and identity—or where such proof isinextricably interwoven with the charged crimes, provides necessary background or completes awitness's narrative" (People vSmith, 157 AD3d 978, 979-980 [2018] [internal quotation marks and citations omitted],lv denied 31 NY3d 1087 [2018]; see People v Anthony, 152 AD3d 1048, 1050-1051 [2017], lvdenied 30 NY3d 978 [2017]). As County Court found, such proposed testimony was relevanton the issue of motive, intent and identity. Furthermore, the probative value outweighed anyprejudice to defendant. Taking into account the court's limiting instruction given at the time of itsintroduction and in the final charge, we cannot say that the court erred in its Molineuxruling (see People v Palin, 158AD3d 936, 941 [2018], lv denied 31 NY3d 1016 [2018]; People v Watson, 150 AD3d 1384,1386 [2017], lv denied 29 NY3d 1135 [2017]; People v Womack, 143 AD3d 1171, 1174 [2016], lv denied28 NY3d 1151 [2017]).
We disagree with defendant's contention that County Court's protective order prohibitingdefendant from taking witness affidavits and grand jury testimony to the jail was an abuse ofdiscretion. The court noted that these materials were not voluminous and previously given todefense counsel. The court provided defendant with access and time to review them and merelyprohibited him from taking them to the jail with him. In view of the foregoing and consideringthe violent nature of the crimes and the absence of any prejudice as a consequence of theprotective order, we cannot say that County Court abused its discretion in issuing the protectiveorder (see People v Fields, 160AD3d 1116, 1121 [2018], lv denied 31 NY3d 1116 [2018]).
Defendant raises various criticisms of his counsel in arguing that he received ineffectiveassistance, but fails to articulate the absence of strategic or other legitimate explanations forcounsel's alleged deficient conduct. Viewing the record as a whole and considering thatdefendant was acquitted of the charge of attempted murder in the second degree, we are satisfiedthat defendant received meaningful representation (see People v Brown, 169 AD3d 1258, 1260 [2019]; People vSmith, 157 AD3d at 982). Defendant's argument that it was improper for the People to elicittestimony regarding their inability to locate a witness for trial is unpreserved in the absence of anobjection thereto (see People vPilgrim, 146 AD3d 478, 479 [2017], lv denied 29 NY3d 1085 [2017]).Defendant's claim that County Court incorrectly limited his cross-examination of one of thePeople's witnesses with respect to an unrelated crime is also unpreserved (see People v Wright, 38 AD3d1232, 1233 [2007], lv denied 9 NY3d 853 [2007]). Defendant's assertion that thecourt improperly curtailed voir dire is likewise unpreserved for our review (see People vReed, 244 AD2d 782, 783 [1997], lv denied 91 NY2d 896 [1998]) and, in any event,is without merit (see People v Augustine, 235 AD2d 915, 919 [1997], appealdismissed 89 NY2d 1072 [1997], lv denied 89 NY2d 1088 [1997]).
We are unpersuaded by defendant's argument that the sentence was harsh and excessive."Sentencing generally rests within the discretion of the trial court" (People v Caruso, 34 AD3d 863,865 [2006], lv denied 8 NY3d 879 [2007]), and a legally permissible sentence will not bedisturbed absent an abuse of the sentencing court's discretion or extraordinary circumstances (see People v Simmons, 122 AD3d1169, 1169 [2014], lv denied 25 NY3d 1171 [2015]). Notwithstanding defendant'sage and lack of a criminal history, we discern no abuse of discretion or extraordinarycircumstances warranting the modification of defendant's sentence in the interest of justice (see People v Weaver, 167 AD3d1238, 1245 [2018], lv denied 33 NY3d 955 [2019]; People v Capers, 129 AD3d 1313,1319 [2015], lv denied 27 NY3d 994 [2016]). Nor do we agree with defendant's claimthat he was punished for exercising his right to a trial (see People v Alexander, 160 AD3d 1121, 1124 [2018], lvdenied 31 NY3d 1144 [2018]; People v Serrano-Gonzalez, 146 AD3d 1013, 1017 [2017], lvdenied 29 NY3d 952 [2017]). Finally, defendant's contention that County Courtpredetermined its decision to deny youthful offender status is unpreserved and, in any event,belied by the record. Defendant's remaining arguments have been examined and are withoutmerit.
Garry, P.J., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's legal sufficiencyclaim is unpreserved for our review because he failed to move to dismiss this specific charge atthe close of the People's case-in-chief (see People v Keener, 152 AD3d 1073, 1074-1075 [2017];People v Davenport, 58 AD3d 892, 893-894 [2009], lv denied 12 NY3d 782[2009]).