| People v Lundy |
| 2019 NY Slip Op 09139 [178 AD3d 1389] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Quincy Lundy, Appellant. (Appeal No. 1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak 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 (Thomas J. Miller, J.), renderedNovember 21, 2014. 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: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of murder in the second degree (Penal Law § 125.25 [1]) and twocounts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b];[3]). In appeal No. 2, defendant appeals by permission of this Court from an order that denied hismotion pursuant to CPL 440.10 seeking to vacate the judgment of conviction. We affirm in bothappeals.
We reject defendant's contention in appeal No. 1 that County Court abused its discretion indenying his motion to sever his trial from that of his codefendant (see generally CPL200.40 [1]). Defendant failed to establish good cause for severance inasmuch as he failed todemonstrate "that the core of his codefendant's alibi defense was in irreconcilable conflict withhis own defense, and that there was a significant danger that the conflict would lead the jury toinfer his guilt" (People v Campbell, 118 AD3d 1464, 1466 [4th Dept 2014], lv denied 24 NY3d 959 [2014],denied reconsideration 24 NY3d 1218 [2015]; see People v Cardwell, 78 NY2d996, 997-998 [1991]).
We further reject defendant's contention in appeal No. 1 that he was deprived of a fair trialbased on prosecutorial misconduct during summation. Defendant's contention is largelyunpreserved and, in any event, lacks merit. " '[T]he prosecutor's closing statement mustbe evaluated in light of the defense summation, which put into issue the [witnesses'] characterand credibility and justified the People's response' " (People v Lundy, 165 AD3d 1626, 1628 [4th Dept 2018], lvdenied 32 NY3d 1174 [2019]; see People v Halm, 81 NY2d 819, 821 [1993]). Evenassuming, arguendo, that any of the prosecutor's comments during summation exceeded thebounds of propriety, we conclude that they were "not so pervasive or egregious as to deprivedefendant of a fair trial" (People vJackson, 108 AD3d 1079, 1080 [4th Dept 2013], lv denied 22 NY3d 997 [2013][internal quotation marks omitted]).
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 reject defendant's further contention in appeal No. 1 that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "[R]esolution of issues of credibility and the weight to be accorded to the evidence areprimarily questions to be determined by the jury" (People v Reed, 163 AD3d 1446, 1448-1449 [4th Dept 2018], lvdenied 32 NY3d 1067 [2018]; seePeople v Tuszynski, 120 AD3d 1568, 1568-1569 [4th Dept 2014], lv denied 25NY3d 954 [2015]), and we perceive no basis for disturbing the jury's credibility determinationsin this case.
Defendant failed to preserve for our review his contention in appeal No. 1 that the photoarray from which a witness identified him was unduly suggestive based on defendant's shirtcolor, thereby tainting that witness's subsequent in-court identification of defendant (see People v Evans, 137 AD3d1683, 1683 [4th Dept 2016], lv denied 27 NY3d 1131 [2016]). In any event, thecontention lacks merit. Although defendant was the only person in the photo array wearing a redshirt, it was "not so distinctive as to be conspicuous, particularly since the other individuals [inthe photo array] were dressed in varying, nondescript apparel" (Lundy, 165 AD3d at 1627[internal quotation marks omitted]; see People v Sullivan, 300 AD2d 689, 690 [3d Dept2002], lv denied 100 NY2d 587 [2003]).
We also reject defendant's contention in appeal No. 1 that he received ineffective assistanceof counsel based on defense counsel's failure to preserve for our review defendant's contentionsregarding alleged prosecutorial misconduct and the photo array. As noted above, thosecontentions lack merit, and thus defense counsel was not ineffective for failing to raise them(see Reed, 163 AD3d at 1448). Furthermore, contrary to defendant's contention in appealNo. 2, the court properly denied defendant's motion pursuant to CPL 440.10 insofar as themotion was based on those allegations of ineffective assistance because there were sufficientrecord facts to review them on direct appeal (see CPL 440.10 [2] [b]). We haveconsidered defendant's remaining allegations of ineffective assistance of counsel in appeal Nos. 1and 2, and we conclude that he failed to meet his burden of demonstrating "the absence ofstrategic or other legitimate explanations" for defense counsel's allegedly deficient conduct(Reed, 163 AD3d at 1448 [internal quotation marks omitted]; see People v Pavone, 26 NY3d629, 646-647 [2015]).
Finally, we reject defendant's contention in appeal No. 2 that two posttrial affidavits of thesurviving victim constitute newly discovered evidence. It is well settled that, in order to establishentitlement to a new trial on the ground of newly discovered evidence, "a defendant must provethat there is newly discovered evidence: (1) which will probably change the result if a new trial isgranted; (2) which was discovered since the trial; (3) which could not have been discovered priorto trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merelyimpeach or contradict the record evidence" (People v Bryant, 117 AD3d 1586, 1587 [4th Dept 2014] [internalquotation marks omitted]). Here, we conclude that defendant failed to meet his burden inasmuchas the surviving victim's posttrial affidavits would be unlikely to change the result if a new trialwere granted, the affidavits merely impeach or contradict the record evidence, and theinformation therein could have been discovered prior to trial. Present—Centra, J.P., Carni,Curran, Troutman and Winslow, JJ.