| People v Coppins |
| 2019 NY Slip Op 05021 [173 AD3d 1459] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Derek J. Coppins, Appellant. |
David E. Woodin, Catskill, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered January 19, 2017, upon a verdict convicting defendant of the crimes of attemptedassault in the first degree, assault in the second degree and tampering with a witness in the fourthdegree.
In March 2016, defendant was charged by indictment with attempted assault in the firstdegree and assault in the second degree, stemming from an incident outside a residence in theCity of Albany wherein defendant allegedly struck the victim multiple times with a bat, causingthe victim to suffer serious injuries, including a laceration to the back of his head and a brokenleft forearm. At the time of the incident, the victim was dating defendant's former girlfriend(hereinafter the girlfriend), who was also the mother of defendant's daughter. Followingindictment, the People discovered that, while defendant was incarcerated pending action by thegrand jury, he had telephoned the girlfriend in an attempt to dissuade her and the victim fromtestifying against him before the grand jury. As a result, in April 2016, the People filed asuperseding indictment charging defendant with attempted assault in the first degree, assault inthe second degree and tampering with a witness in the fourth degree (two counts).
Defendant filed an omnibus motion seeking to, among other things, dismiss both counts oftampering with a witness in the fourth degree. County Court partially granted defendant's motionby dismissing count 4 of the superseding indictment charging him with tampering with a witnessin the fourth degree with respect to the victim, based upon legally insufficientevidence.[FN1] Prior to trial,County Court granted defendant's application for review of the grand jury minutes with respect tothe superseding indictment, but denied his subsequent motion to dismiss same. Following a jurytrial, defendant was found guilty as charged. He was thereafter sentenced to a prison term of 15years, to be followed by five years of postrelease supervision, for his conviction of attemptedassault in the first degree and lesser concurrent prison terms on the other two convictions.Defendant appeals.
County Court properly denied defendant's motion to dismiss the superseding indictment.Dismissal of an indictment may be granted upon a determination that the integrity of the grandjury proceeding has been so impaired that prejudice to the defendant may result (see CPL210.35 [5]; People v West, 166AD3d 1080, 1081 [2018], lv denied 32 NY3d 1129 [2018]). Dismissal of anindictment "is a drastic, exceptional remedy and 'should thus be limited to those instances whereprosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decisionreached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688 [2005], lv denied 5NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409 [1996]; accord People v Wilkinson, 166 AD3d1396, 1397 [2018], lv denied 32 NY3d 1179 [2019]).
A review of the grand jury minutes with respect to the superseding indictment reveals no"prosecutorial wrongdoing, fraudulent conduct or other prejudicial error in the People'spresentation of evidence that would warrant dismissal of the [superseding] indictment" (People v Busreth, 167 AD3d 1089,1090 [2018], lv denied 33 NY3d 946 [2019]; see CPL 210.35 [2], [3]; Peoplev Huston, 88 NY2d at 409; People vMesko, 150 AD3d 1412, 1414 [2017], lv denied 29 NY3d 1131 [2017]).Significantly, the 18 grand jurors empaneled for presentment of the initial indictment were thesame grand jurors that heard the presentment of the superseding indictment. Thus, it was noterror for the People to submit transcripts of the testimony of those witnesses who had previouslytestified at the first grand jury presentment because the People were not required to recall thesewitnesses or re-present evidence in order to obtain a true bill on the superseding indictment, andthe procedure that was followed did not impair the integrity of the grand jury proceeding orotherwise prejudice defendant (see CPL 200.80; People v Cade, 74 NY2d 410,414 [1989]; People v Salerno, 3 NY2d 175, 177-179 [1957]). It was also not necessaryfor the grand jury to vacate its prior vote on the initial indictment prior to the People'spresentment on the superseding indictment (see People v Cade, 74 NY2d at 417; compare People v Grimes, 115 AD3d1194, 1196 [2014], lv denied 24 NY3d 1084 [2014]).
The jury verdict was not against the weight of the evidence. As relevant here, in order to befound guilty of attempted assault in the first degree, the People were required to prove that, "withintent to cause serious physical injury to another person, the defendant attempted to cause suchinjury by means of a deadly weapon" (People v Rawlinson, 170 AD3d 1425, 1426 [2019] [internalquotation marks, brackets, ellipsis and citations omitted]; see Penal Law§§ 110.00, 120.10 [1]). In order to be found guilty of assault in the seconddegree, the People were required to prove that, "[w]ith intent to cause physical injury to anotherperson, [the defendant] cause[d] such injury to such person or to a third person by means of adeadly weapon or a dangerous instrument" (Penal Law § 120.05 [2]).[FN2] Lastly, "[a] person is guilty oftampering with a witness when, knowing that a person is or is about to be called as a witness inan action or proceeding, . . . he [or she] wrongfully induces or attempts to inducesuch person to absent himself [or herself] from, or otherwise to avoid or seek to avoid appearingor testifying at, such action or proceeding" (Penal Law § 215.10 [a]).
The evidence at trial established that defendant and the girlfriend had previously been in arelationship for 13 or 14 years and, during such time, had a daughter together. That relationshipended in 2013, and the victim and the girlfriend began dating in the fall of 2015. In November2015, defendant sent the victim a Facebook message warning him to "stay the f**k away from[my] wife and daughter," that he was "serious as a heart attack," and that defendant remainedinvolved with the girlfriend and was "still in the picture." Although the victim responded to themessage and attempted to resolve the matter, he nevertheless continued dating the girlfriend. Onthe night in question, the victim was working as a cab driver and stopped over to the girlfriend'shouse for a few hours after she invited him to dinner. At approximately 11:45 p.m., the victimleft the girlfriend's residence to return to work. As he was about to enter his cab—whichwas parked in the girlfriend's driveway—he was struck in the head from behind by a bat.The force of the blow caused him to fall down on one knee and, when he turned around, heobserved defendant who stated, "I told you to stay the F away from my family." The victimunsuccessfully attempted to wrestle the bat away from defendant, and defendant continued toaggressively swing the bat "like he was Barry Bonds . . . trying to knock one out ofthe park," striking the victim a total of four to six times, including in the back, side of his head,shoulder and left forearm. The girlfriend heard the commotion outside and, upon exiting herapartment, recognized defendant's voice, observed him standing over the victim with a bat andlater saw his face as he fled on foot from the scene. The victim was subsequently transported byambulance to the hospital where he received staples to close the wound on his head andunderwent surgery for a broken left ulna in his forearm, which required the insertion of a metalplate and numerous staples to close the surgical wound. The victim was out of work forapproximately two months due to his injuries and continued to suffer headaches as a result of theassault. Two days after the assault, defendant was arrested after police observed him entering theapartment building where his father resided and subsequently found him hiding in a commoncloset in the building's foyer. While defendant was incarcerated pending trial, the girlfriendreceived multiple telephone calls from him on March 8, 2016—the day before she was totestify before the grand jury—wherein defendant sought to dissuade her from testifyingagainst him. Based on the foregoing, although another verdict would not have beenunreasonable—given defendant's testimony denying his involvement in the assault and hispurported alibi defense—when viewing the evidence in a neutral light and accordingdeference to the jury's credibility determinations, we find that the jury's verdict is supported bythe weight of the evidence (see People vGill, 168 AD3d 1140, 1142 [2019]; People v Martinez, 166 AD3d 1292, 1294-1295 [2018], lvdenied 32 NY3d 1207 [2019]).
We also reject defendant's contention that County Court failed to conduct an adequateinquiry before discharging one of the jurors. CPL 270.35 (1) provides, in relevant part, that acourt shall discharge a juror "[i]f at any time after the trial jury has been sworn and before therendition of its verdict, a juror is unable to continue serving by reason of illness or otherincapacity, or for any other reason is unavailable for continued service." Under thesecircumstances, the court may discharge a sworn juror after it has made " 'a reasonablythorough inquiry' and . . . 'determine[d] that there is no reasonable likelihood' thatthe juror will be able to resume service 'within two hours of the time set by the court for the trialto resume' " (People v Wilkinson, 166 AD3d at 1398, quoting CPL 270.35 [2][a]; see People v Jeanty, 94 NY2d 507, 514 [2000]).
On the morning that County Court was scheduled to charge the jury, it was informed by anemployee from the Commissioner of Jurors' office that juror No. 3 had telephoned earlier thatmorning and reported that he had the flu and would be unable to appear for jury service that day.County Court consulted with counsel and, after rejecting a request from defense counsel that thecourt personally call the juror, directed the same employee to call juror No. 3 back and makefurther inquiry as to whether "he would be available [to serve] at any time today."[FN3] After the employee made thiscall, she returned to the courtroom and reported that she had spoken to the juror, who informedher that he was not feeling well, that he had been sleeping at the time she called and that "he wassick, and he would not be able to make it back today, but possibly tomorrow morning he wouldbe able to make it at about 8:30." County Court permitted defense counsel to make inquiry of theemployee and heard argument concerning whether juror No. 3 should be discharged. Followingcounsel's arguments, County Court discharged juror No. 3, over defendant's objection, findingthat there was no reasonable likelihood that he would be able to appear within two hours. CountyCourt also denied defendant's request for an adjournment and substituted one of the alternatejurors in the place of juror No. 3.
County Court correctly conducted the requisite inquiry, provided the parties with anopportunity to be heard and had a sufficient basis to conclude that juror No. 3's absence woulddelay the trial for more than the statutorily required two hours (see CPL 270.35 [2] [a];People v Jeanty, 94 NY2d at 516-517; People v Wilkinson, 166 AD3d at 1399;People v Tyrell, 82 AD3d 1352,1356 [2011], lv denied 17 NY3d 810 [2011]; People v Cruz, 48 AD3d 205, 206 [2008], lv denied 10NY3d 957 [2008]). Insofar as "there is no material distinction between regular and alternatejurors," County Court did not abuse its discretion by replacing juror No. 3 with an alternate juror(People v Jeanty, 94 NY2d at 517 [internal quotation marks and citation omitted]; see People v Ballard, 51 AD3d1034, 1036 [2008], lv denied 11 NY3d 734 [2008]).
Finally, defendant's contention that his sentence was harsh and excessive is without merit.Given the violent nature of defendant's conduct, the serious injuries inflicted and his extensivecriminal history, we find no abuse of discretion or extraordinary circumstances warranting areduction of defendant's sentence in the interest of justice (see CPL 470.15 [3] [c]; [6][b]; People v Woods, 166 AD3d1298, 1300 [2018], lv denied 33 NY3d 1036[2019]; People v Cayea, 163 AD3d1279, 1283 [2018], lv denied 32 NY3d 1109 [2018]; People v Brabham, 126 AD3d1040, 1044 [2015], lv denied 25 NY3d 1160 [2015]).
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The People subsequentlyamended the indictment, removing count 4 based upon County Court's dismissal of said charge.
Footnote 2:Physical injury is defined as"impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]).
Footnote 3:Defense counsel conceded thatthere was nothing improper with County Court delegating the authority to make this call to theemployee.