| People v Saunders |
| 2019 NY Slip Op 07645 [176 AD3d 1384] |
| October 24, 2019 |
| Appellate Division, Third Department |
[*1](October 24, 2019)
| The People of the State of New York,Respondent, v Nigel Saunders, Appellant. |
John A. Cirando, Syracuse, for appellant.
Kirk O. Martin, Special Prosecutor, Owego (Sandra L. Cardone of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 27, 2015, upon a verdict convicting defendant of the crimes of burglary in thefirst degree, robbery in the first degree, murder in the second degree (two counts) and assault inthe second degree.
At approximately 6:00 a.m. on November 4, 2013, a newspaper employee was driving onMygatt Street in the City of Binghamton, Broome County when he encountered a young woman(hereinafter victim A) walking in the street, naked from the waist down, covered in blood andpleading for help. The driver called 911 and, while on the telephone with the dispatcher, spokewith victim A who indicated that her boyfriend (hereinafter victim B) had been killed, that shehad been raped, beaten and stabbed and that the two assailants had stolen victim B's truck, ablack 2001 Dodge Ram, and fled the scene. She also identified defendant as one of the twoassailants. The police thereafter obtained an address for defendant; however, no one answered thedoor to his apartment when they attempted to locate him at approximately 9:00 a.m. A fewminutes later, defendant called the Binghamton police, spoke to a police captain and agreed tovoluntarily go to the police station to be interviewed. Police subsequently observed defendantexit his apartment building and, upon inquiry, he agreed to accompany them to the station. Hewas arrested later that day.
In December 2013, defendant and his codefendant, Julian Talamantez, were charged byindictment with, as relevant here, the crimes of burglary in the first degree, robbery in the firstdegree, two counts of murder in the second degree and assault in the second degree; defendant'scharges were all based on a theory of accomplice liability.[FN1] Following a jury trial, defendant was convictedas charged. He was thereafter sentenced, as a second violent felony offender, to concurrent prisonterms of 25 years, to be followed by five years of postrelease supervision, on each of hisconvictions for burglary in the first degree, robbery in the first degree and murder in the seconddegree (two counts). Defendant was also sentenced to a consecutive prison term of seven years,to be followed by five years of postrelease supervision, for his conviction of assault in the seconddegree. Defendant appeals.
Defendant contends that his convictions are not supported by legally sufficient evidence andare against the weight of the evidence because the proof at trial failed to, among other things,establish that he was present at the victims' residence on the morning in question. As defendantconcedes, however, his challenge to the legal sufficiency of the evidence is unpreserved forappellate review as he only made a general motion for a trial order of dismissal at the close of thePeople's proof and subsequently failed to renew said motion following presentation of his owncase (see People v Trappler, 173AD3d 1334, 1334-1335 [2019]; People v Thorpe, 141 AD3d 927, 928 [2016], lv denied 28NY3d 1031 [2016]). Nevertheless, as part of our weight of the evidence review, we mustnecessarily determine whether the elements of the charged crimes were proven at trial beyond areasonable doubt (see People vMartinez, 166 AD3d 1292, 1293 [2018], lv denied 32 NY3d 1207 [2019]; People v Oliver, 135 AD3d 1188,1190 [2016], lv denied 27 NY3d 1003 [2016]).
"In conducting a weight of the evidence review, we view the evidence in a neutral light anddetermine first whether a different verdict would have been unreasonable and, if not, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v Henry, 173AD3d 1470, 1473 [2019] [internal quotation marks and citation omitted], lv denied34 NY3d 932 [2019]; see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]). As relevant here, "[a] person is liable as an accomplice for the conduct ofanother person 'when, acting with the mental culpability required for the commission thereof, he[or she] solicits, requests, commands, importunes, or intentionally aids such person to engage insuch conduct' " (People vWilliams, 156 AD3d 1224, 1226 [2017], lv denied 31 NY3d 1018 [2018],quoting Penal Law § 20.00; see People v Smith, 174 AD3d 1039, 1041 [2019]). To be foundguilty of burglary in the first degree, the People are required to prove that the defendant"knowingly enter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crimetherein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom,he[, she] or another participant in the crime . . . [c]auses physical injury to anyperson who is not a participant in the crime" (Penal Law § 140.30 [2]). "A person isguilty of robbery in the first degree when he [or she] forcibly steals property and when, in thecourse of the commission of the crime or of immediate flight therefrom, he or [she]. . . [c]auses serious physical injury to any person who is not a participant in thecrime" (Penal Law § 160.15 [1]). Additionally, "[a] person is guilty of murder in thesecond degree when[,] . . . [w]ith intent to cause the death of another person, he [orshe] causes the death of such person or of a third person" (Penal Law § 125.25 [1]),or when "he [or she] commits or attempts to commit robbery [or] burglary . . . and,in the course of and in furtherance of such crime or of immediate flight therefrom, he [or she]. . . causes the death of a person [that was not a participant]" (Penal Law§ 125.25 [3]). Lastly, "[a] person is guilty of assault in the second degree when[,]. . . [i]n the course of and in furtherance of the commission or attemptedcommission of a felony, . . . or of immediate flight therefrom, he, [she] or anotherparticipant[,] if there be any, causes physical injury to a person other than one of the participants"(Penal Law § 120.05 [6]).
The evidence introduced at trial established that defendant and victim B had been friendssince childhood. In April or May 2013, following the death of victim B's mother, defendantmoved into the residence that victim A and victim B shared. In June 2013, however, the victimsmade a complaint to police against defendant after approximately $7,000 went missing from theirhome; they had not otherwise seen or heard from defendant since the complaint. Defendant wassubsequently incarcerated for an unrelated parole violation and, following his release from jail,he sent a Facebook message to victim B's sister on October 8, 2013 blaming victim B for himhaving been sent back to jail and threatening that he was going to "f**k [victim B] up."Approximately one month later, on the evening of November 3, 2013, defendant visited hisfriend, Jason Deskin, in order to, among other things, obtain a gun because he had a "score" tosettle with "people that he lived with before." Although Deskin had no gun, he did ask defendantto get him heroin and, a couple hours later, Deskin and his girlfriend rode with another friend topick up defendant and Talamantez—who lived together—to go get drugs, droppingthem off around the corner from the victims' residence at approximately 1:00 a.m.[FN2]
Meanwhile, having gone to bed at approximately 10:30 p.m. the prior evening, the victimswere awakened in the middle of the night when two men wearing ski masks busted into theirbedroom yelling "DEA." The two men attacked the victims, beating them and shocking themwith tasers. Victim A was brought into the upstairs hallway and told to sit down, as her handswere tied behind her back, while Talamantez continued to beat victim B. When the individualtying her hands behind her back asked victim A where the victims' money and marihuana werelocated, she immediately recognized the voice as that of defendant, her former roommate. Shesubsequently showed defendant where the victims' money was, and defendant took the $1,000that they had in their bedroom. Defendant and Talamantez then led the victims to a small room inthe basement, where defendant tied their ankles together. While defendant went upstairs,Talamantez raped victim A and then locked the victims in the basement room and returnedupstairs. Sometime later, defendant and Talamantez reappeared and defendant struck victim A inthe head with a machete, before leaving again. The victims were ultimately able to untie theirrestraints, but, when Talamantez again returned, victim B unsuccessfully attempted to rush him,whereupon Talamantez began repeatedly stabbing victim B, ultimately severing his carotidartery, killing him. Talamantez then stabbed victim A multiple times in the stomach, arm, leg andback and then once again left the room. When Talamantez returned, victim A attempted to "play[] dead," but Talamantez subsequently poured a "gassy fluid" over both her and victim B and lit iton fire, causing her to jump away from the fire. Talamantez then pushed her back in the room,locked the door and left. Victim A subsequently heard victim B's truck start and drive away, andshe was ultimately able to break a small basement window and escape. Following the arrival ofemergency personnel, she immediately identified defendant as one of the assailants.[FN3]
At approximately the same time, Theresa Papio, defendant and Talmantez's roommate,observed defendant and Talamantez outside of their apartment unloading property from a blacktruck—which property and truck were later determined to be stolen from the victims'residence—into their apartment. Talamantez was covered in blood and she observed himchange his bloody clothes, place them in a garbage bag and dispose of them in a nearbydumpster. Defendant was arrested later that day. Five days after his arrest, defendant's girlfriendreturned to defendant's apartment after visiting him in jail and, per his instructions, retrievedcertain blood-stained money that he had hidden in the ceiling above his bedroom. Although adifferent verdict would not have been unreasonable, given the lack of forensic evidence linkingdefendant to the crime scene, when viewing the evidence in a neutral light and deferring to thejury's credibility determinations, we find that the evidence presented at trial overwhelminglyestablished defendant as one of the perpetrators and we are satisfied that his convictions aresupported by the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Smith, 174 AD3d at 1042-1043; People v Ackerman, 173 AD3d 1346, 1350 [2019], lvdenied 34 NY3d 949 [2019]).
Defendant next contends that County Court abused its discretion when it failed to conductthe requisite minimal inquiry before denying his request for the substitution of assigned counsel.We disagree. The determination of whether an indigent defendant is entitled to substitution ofassigned counsel is a decision within the sound discretion of the trial court (see People v Porto, 16 NY3d 93,99-100 [2010]; People v Matthews,159 AD3d 1111, 1116 [2018]). "To warrant the substitution of assigned counsel, defendantwas required to make specific factual allegations of serious complaints about counsel. If such ashowing is made, the court must make at least a minimal inquiry, and discern meritoriouscomplaints from disingenuous applications by inquiring as to the nature of the disagreement orits potential for resolution" (People vPuccini, 145 AD3d 1107, 1109 [2016] [internal quotation marks and citations omitted],lv denied 29 NY3d 1035 [2017]; see People v Alberts, 161 AD3d 1298, 1305 [2018], lvdenied 31 NY3d 1114 [2018]).
Defendant submitted a letter to County Court indicating that he was having issues with hisassigned defense counsel, stating generally that counsel was not "representing [him] with [his]best interest at hand . . . [and had] made it clear he's trying to get me a plea bargain"and that the matter had been on the court's trial calendar "forever." At the next court appearancefollowing receipt of defendant's letter, County Court reminded defendant that, at his December2013 arraignment, both defendant and defense counsel had indicated that this was going to be "adefinite trial" case and that, since such time, no plea conference had been conducted and no pleaoffer had been extended by the People. County Court also made inquiry of defendant and defensecounsel and confirmed that, to date, defense counsel had provided defendant with copies of allrelevant motions, as well as hundreds of pages of additional discovery material. At no pointduring this colloquy did defendant raise any other specific objections to, or wrongdoingassociated with, defense counsel's representation.[FN4] Accordingly, given defendant's failure toarticulate any serious complaints regarding counsel's representation or otherwise demonstrate theexistence of good cause justifying the substitution of his assigned counsel, we find that CountyCourt appropriately exercised its discretion in denying defendant's request for new counsel (see People v Smith, 18 NY3d 588,593 [2012]; People v Lanier, 158AD3d 895, 896-897 [2018]; People v Puccini, 145 AD3d at 1109).
Defendant was not deprived of a fair trial as a result of County Court's various evidentiaryrulings. "Trial courts are accorded wide discretion in making evidentiary rulings and, absent anabuse of discretion, those rulings should not be disturbed on appeal" (People v Carroll, 95NY2d 375, 385 [2000]; accord People vStrife, 167 AD3d 1095, 1097 [2018]; People v Collins, 126 AD3d 1132, 1133 [2015], lv denied25 NY3d 1161 [2015]). With respect to County Court's Molineux ruling, "[i]t is wellsettled that evidence of uncharged crimes or prior bad acts may be admitted where they fallwithin the recognized Molineux exceptions—motive, intent, absence of mistake,common plan or scheme and identity—or where such proof is inextricably interwovenwith the charged crimes, provides necessary background or completes a witness's narrative" (People v Turner, 172 AD3d 1768,1771-1772 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d939 [2019]; see People v Frankline,27 NY3d 1113, 1115 [2016]; People v Gannon, 174 AD3d 1054, 1058 [2019]). Here, the videoof defendant's interview with police, and the corresponding transcript thereof wherein he admitsto having previously possessed and used drugs with the victims, was information relevant andmaterial to the issues of both motive and intent and provided necessary background informationregarding the nature of defendant's relationship with the victims (see People v Higgins, 12 AD3d775, 778 [2004], lv denied 4 NY3d 764 [2005]). Moreover, defendant thereafterdeclined County Court's invitation to provide a limiting instruction to the jury regarding thereferences to this uncharged criminal conduct. Therefore, under the circumstances, we cannot saythat the court's ruling constituted an abuse of discretion.[FN5]
We further find that County Court properly exercised its discretion in denying defendant'smotion in limine seeking to present the testimony of an expert witness on voice identification.Although there was no scientific or DNA evidence presented at trial linking defendant to thecrime scene, victim A identified defendant's voice as one of the masked perpetrators of thesubject crimes, and her identification was corroborated by ample other evidence connectingdefendant to the crime, including his threatening Facebook message to victim B's sister, havingbeen dropped off near the crime scene on the morning in question, his roommate observing himunloading the victims' stolen property from victim B's truck and possessing blood-stained money.Accordingly, given the strength of the corroborating evidence connecting defendant to thecommission of the subject crimes, we find no abuse of discretion in County Court's decision toexclude testimony from defendant's voice identification expert (see People v Santiago, 17 NY3d661, 669-671 [2011]; People vSolano, 138 AD3d 525, 526 [2016], lv denied 27 NY3d 1155 [2016]; see also People v Abney, 13 NY3d251, 267-268 [2009]; People vLeGrand, 8 NY3d 449, 455 [2007]).
Nor do we find that the admission of three photographs (People's exhibit Nos. 56, 57, 147)were so unduly prejudicial as to require a reversal of defendant's conviction. First, People'sexhibit No. 147, a photograph of victim A's post-surgery elbow wound, was relevant and materialto the charge of assault in the second degree in that it demonstrated the seriousness of victim A'sinjuries (see Penal Law § 120.05; People v Greenfield, 167 AD3d 1060, 1063 [2018], lvdenied 32 NY3d 1204 [2019]). Second, even assuming, without deciding, that the prejudicialvalue of admitting People's exhibit Nos. 56 and 57—which show the layout of the crimescene, including victim B's body—outweighed the probative value of same, given theoverwhelming proof of defendant's guilt, we find any such error to be harmless, as there was nosignificant probability that the jury would have acquitted defendant but for the admission of theseexhibits (see People v Tackentien,114 AD3d 1259, 1259 [2014], lv denied 23 NY3d 1025 [2014]; People vStevens, 153 AD2d 768, 770 [1989], affd 76 NY2d 833 [1990]; see generallyPeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
We reject defendant's contention that he was not afforded meaningful representation. "Aclaimed violation of the constitutional right to the effective assistance of counsel will not survivejudicial scrutiny so long as the evidence, the law, and the circumstances of a particular case,viewed in totality and as of the time of the representation, reveal that the attorney providedmeaningful representation" (People vPitt, 170 AD3d 1282, 1286 [2019] [internal quotation marks and citation omitted], lvdenied 33 NY3d 1072 [2019]). Here, the record was insufficient to establish a prima faciecase of discrimination under Batson, and counsel will not be found to have beenineffective based upon failing to make a motion that had little or no chance of success (see People v Stultz, 2 NY3d 277,287 [2004]; People v Dorsey, 3AD3d 590, 591-592 [2004]). Additionally, in light of our determination that defendant'sconviction was not against the weight of the evidence, counsel's failure to preserve defendant'slegal sufficiency claim does not constitute the ineffective assistance of counsel (see People vWilliams, 156 AD3d at 1231). Defendant's counsel made appropriate pretrial motions,opposed the People's Molineux application, adequately represented defendant during juryselection, made appropriate objections at trial, thoroughly cross-examined witnesses andprovided cogent opening and closing statements, consistently pursuing a trial strategy ofattempting to establish that defendant was not present at the victims' residence when the subjectcrimes were alleged to have occurred. Accordingly, viewing the record in its entirety, we aresatisfied that defendant was provided with meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Ash, 162 AD3d 1318, 1322 [2018], lv denied 32NY3d 1002 [2018]; People vAnthony, 152 AD3d 1048, 1053 [2017], lv denied 30 NY3d 978 [2017]).
Finally, given the brutal and senseless nature of the crimes committed, defendant's priorcriminal history and his failure to accept any responsibility for these violent crimes, we discernno extraordinary circumstances or abuse of discretion that would warrant a reduction of thesentence imposed in the interest of justice (see People v Malloy, 166 AD3d 1302, 1311 [2018], affd 33NY3d 1078 [2019]; People vRobinson, 156 AD3d 1123, 1131-1132 [2017], lv denied 30 NY3d 1119 [2018];People v Nelligan, 135 AD3d1075, 1078 [2016], lv denied 27 NY3d 1072 [2016]). To the extent not specificallyaddressed, defendant's remaining contentions have been reviewed and found to be withoutmerit.
Lynch, Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Following his indictment,defendant moved to sever his trial from that of Talamantez; however, Talamantez subsequentlypleaded guilty, rendering said motion moot.
Footnote 2:After dropping defendant andTalamantez off near Mygatt Street, Deskin, his girlfriend and the other friend waited at a localgas station for defendant and Talamantez to return with the drugs but, after approximately 45minutes passed without any response from defendant and Talamantez, they drove home.
Footnote 3:Upon admission to the hospital,victim A was determined to have a combination of penetrating and blunt force injuries, includingopen wounds to her scalp and face that required numerous staples to close, 22 or 23 stab woundsand puncture wounds to her chest, abdomen, hand, back and thighs, a fractured middle finger anda large gash over her left elbow stemming from a compound elbow fracture.
Footnote 4:County Court further noted thatdefense counsel had conducted multiple trials before the court, was a competent attorney and hadalways provided effective representation.
Footnote 5:Defense counsel specificallyindicated that he did not want a limiting instruction so as not to draw attention to the subjectstatements.