| People v White-Span |
| 2020 NY Slip Op 02495 [182 AD3d 909] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1](April 30, 2020)
| The People of the State of New York,Respondent, v Jovell White-Span, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forappellant.
Colangelo, J. Appeals (1) from a judgment of the County Court of Albany County(Lynch, J.), rendered January 21, 2015, upon a verdict convicting defendant of the crimeof murder in the second degree, and (2) by permission, from an order of said court,entered November 15, 2017, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, after a hearing.
In April 2014, defendant and codefendant Jahmeek Croley were indicted on chargesof murder in the second degree and conspiracy in the second degree in connection with ashooting on October 19, 2013 that resulted in the victim's death. Following a joint jurytrial, defendant was convicted of murder in the second degree[FN*] and thereafter sentenced to a prisonterm of 25 years to life. In March 2017, defendant moved pursuant to CPL 440.10 tovacate the judgment of conviction claiming, among other violations, that he was deprivedof the effective assistance of counsel. County Court denied the majority of the motionand ordered a hearing only with respect to the ineffective assistance of counsel claim.After the hearing, the court denied the motion in its entirety, finding that defense counselhad offered strategic reasons for his actions. Defendant appeals from the judgment ofconviction and, with permission, from the order denying his motion to vacate. Weaffirm.
Defendant challenges the validity of the indictment, contending that the convictionmust be vacated and the indictment dismissed due to prejudicial testimony introducedbefore the grand jury. Although defendant moved, in his omnibus motion, for dismissalof the indictment on the basis that the evidence before the grand jury was legallyinsufficient, he failed to move to dismiss the indictment on the specific grounds he nowraises. Accordingly, this argument is not preserved for our review (see People v Gunney, 13 AD3d980, 984 [2004], lv denied 5 NY3d 789 [2005]).
Defendant next contends that the jury verdict finding him guilty of second degreemurder was not supported by legally sufficient evidence and was against the weight ofthe evidence. Initially, as defendant's motion for a trial order of dismissal at the close ofthe People's case "was not directed at the specific arguments he raises on appeal, [his]legal sufficiency claim is unpreserved" (People v Shackelton, 177 AD3d 1163, 1165 [2019], lvdenied 34 NY3d 1162 [2020]; see People v Gray, 86 NY2d 10, 19-20[1995]; People v Youngs,175 AD3d 1604, 1606 [2019]). Nevertheless, in reviewing whether "the verdict isagainst the weight of the evidence, this Court necessarily must ensure that the Peopleproved each element of the crime beyond a reasonable doubt. In conducting such areview, where an acquittal would not have been unreasonable, we view the evidence in aneutral light and, while giving deference to the jury's credibility determinations, weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Brinkley, 174 AD3d1159, 1160-1161 [2019] [internal quotations marks and citations omitted], lvdenied 34 NY3d 979 [2019]; see People v Bleakley, 69 NY2d 490, 495[1987]; People v Hilton,166 AD3d 1316, 1318 [2018], lv denied 32 NY3d 1205 [2019]). As relevanthere, "[a] person is guilty of murder in the second degree when . . . [w]ithintent to cause the death of another person, he [or she] causes the death of such person orof a third person" (Penal Law § 125.25 [1]). "[T]he intent to kill may beinferred from the surrounding circumstances and a defendant's actions" (People v Reese, 166 AD3d1057, 1058 [2018] [internal quotation marks and citations omitted], lvdenied 33 NY3d 953 [2019]; see People v Conway, 179 AD3d 1218, 1219 [2020]).
Defendant's conviction was based entirely on circumstantial evidence, as no murderweapon was found, there were no eyewitnesses to the shooting and no evidenceregarding a motive for the killing was offered by the People. The People's case primarilyrelied upon video surveillance, testimony from witnesses who were in the area when theshooting occurred, cell phone records and the autopsy report, which established that thevictim sustained three gunshot wounds, including a fatal wound to his head.
Christopher Cornell, a detective assigned to investigate this shooting, reviewed thesurveillance videos captured from outside of Willie's Sports Bar on Washington Avenuein the City of Albany (hereinafter the bar) and from outside a nearby Stewart's shop. Thebar video depicts a person who appears to be the victim entering the bar shortly after2:00 a.m. and, approximately five minutes later, a person later identified as Croleyentered the bar and then exited after only three minutes and walked away. Cornelltestified that surveillance video from outside the Stewart's shop depicts Croley pullinghis vehicle into the Stewart's parking lot at approximately 2:37 a.m., with a passenger,later identified as defendant. Both Croley and defendant are seen exiting the vehicle,after which defendant immediately pulls his hood up and quickly walks away from thevehicle with Croley following him. Defendant was wearing a blue hooded US Polosweatshirt, bearing the letters "USA" in gold or yellow with a big pony symbol on thechest, and "very distinct" black and yellow Nike Foamposit sneakers. Cornell explainedthat he was able to later identify the passenger as defendant through a Facebookphotograph showing defendant wearing the exact outfit, including the distinctivesneakers that he was wearing on the morning of the shooting. The video from the barshows Croley reentering the bar at approximately 2:39 a.m. after being frisked by thebouncer, and Cornell testified that he was able to locate defendant on a surveillancevideo outside of the bar making "several passes back and forth" without entering the bar.The video shows that defendant was pacing and standing on the sidewalk in front of thebar between approximately 2:42 a.m. and 2:46 a.m. The victim is seen exiting the barwith another person at 3:05 a.m. and, one minute later, defendant is observed walkingpast the bar following in the same direction as the victim. The shooting occurred atapproximately 3:08 a.m.
Timothy Pfeiffenberger, a bouncer at another establishment in the vicinity of the bar,testified that he was standing on the corner of North Lake Avenue and WashingtonAvenue at approximately 3:15 a.m. or so and heard gunshots. He then went to the cornerand "immediately saw [defendant, who he identified at trial,] jogging from theintersection of Cortland [Place] and Washington [Avenue] toward [his] direction,. . . running in front of some traffic, in between some cars." He recountedthat defendant "[p]assed directly by [him], about two feet away from [him]" anddescribed him as an "African-American male," with "dreadlocks about four to six incheslong, about [5 feet 8 inches, wearing] a blue hoodie . . . with gold USAacross the front of it." According to Pfeiffenberger, defendant was "running, had [the]hoody up but it was bouncing on and off. Pulling [his] pants up. Just seemed to befleeing the scene." Pfeiffenberger could not see if there was anything in defendant'shand.
Huie Courtney testified that, on the morning of the shooting, at approximately 3:00a.m. as he turned onto Washington Avenue, he heard five gunshots coming from thedirection of Cortland Place where, it was later discovered, the victim was shot. Afterhearing the gunshots, Courtney saw a "short black male with shoulder-length dreads"wearing dark clothing with lettering on his shirt walking toward him from across thestreet. Courtney testified that this individual, now known as defendant, "[took] his hoodoff and . . . a skull cap or a do-rag fell off." Courtney described thatdefendant walked fast, "with his hands in his hoody" and "took off" after turning thecorner. According to Courtney, after turning the corner, defendant moved "like he wasjust trying to get away from the scene." Courtney did not observe that defendant wascarrying a gun.
Donald Columbus, a friend of the victim, testified that, in the early morning hours ofOctober 19, 2013, he was with the victim and Donovan Johnson at a party at the YMCA.After leaving the party, they drove in Columbus' white Infinity, parked on Cortland Placeand went into the bar. After about 30 minutes, Columbus and the victim left the bar andsaw the victim's cousin, Jamil Jordan, on Washington Avenue. The victim started talkingto Jordan on the corner, and Columbus went to his car, which was located four or five carlengths from the corner where the victim and Jordan were talking. Upon hearinggunshots, Columbus ran away and, in the process, lost his gold chain, which wassubsequently recovered in the vicinity of where his car was parked and the shell casingswere recovered. Columbus did not see anyone with a gun, did not see the victim get intoa fight with anyone or get shot and, after they left the bar, did not see anyone followingthem. Columbus testified that after the gunfire ended, he returned to Cortland Place andsaw Jordan and Josh Otero putting the victim into Otero's car to go to the hospital. WhenOtero's car drove away with the victim, Columbus and Jordan walked back to the barwith the intention of getting Johnson to leave so that Columbus and Johnson could go tothe hospital. Columbus testified that he went to the hospital the next day. Testimony attrial established that two bullet holes from a projectile went through the passenger sidemirror into the front hood of the Infinity, leading to the conclusion that the passengerdoor of Columbus' Infinity was open when the shots were fired.
Steven Whittingham testified that he was with Jordan at the same YMCA party and,after they left, they walked toward the bar and saw the victim and Columbus. After abrief conversation, Whittingham continued to walk toward the bar and the victim, Jordanand Columbus walked to Columbus' car to smoke marihuana. Whittingham recountedthat, while he was still walking, he heard "a few gun shots" coming from behind him andthen ran. Jordan corroborated Whittingham's testimony and also recounted that, as he waswalking to Columbus' car, he heard shots being fired, ran away and then fell down. Whenhe got up, he walked toward the street where Columbus' car was parked and picked upthe victim, who had been shot and was lying in the street. When Otero arrived, they putthe victim in Otero's car for transport to the hospital. Jordan testified that Columbusreturned to the scene, after which they walked to the bar. Jordan did not see who shot thevictim.
Dean Halpin, a detective, testified that, on the morning of the shooting, he went tothe vicinity of where the shooting occurred and located, among other things, .40 calibershell casings and a gold chain. He recounted that a "do-rag" was recovered onWashington Avenue, which was later tested for DNA and found to contain defendant'sDNA. Cornell testified that defendant was interviewed in connection with this case andadmitted to investigators that he was the person in the Facebook photograph wearing thesame outfit as seen on the surveillance videos. Defendant denied knowing Croley andclaimed that he did not recognize Croley's vehicle. Defendant's denial was belied byevidence of a series of phone calls made between defendant and Croley before and afterthe shooting that supported the People's theory that the victim's movements were beingmonitored by Croley and conveyed to defendant.
We find the verdict to be supported by the weight of the evidence. The surveillancevideos support the jury's conclusion that defendant was the shooter. The video from thebar shows that Croley arrived back at the bar and was frisked upon entering atapproximately 2:39 a.m., and defendant is seen pacing back and forth in front of the barbut did not enter, presumably to avoid being frisked. A permissible inference to be drawnfrom the video is that, as the People alleged, defendant was armed with a concealedweapon that would have been discovered had he entered the bar. In addition, defendant isseen following the victim when the victim left the bar. The jury also heard testimony thata "do-rag" with defendant's DNA was found near the scene of the shooting, and twowitnesses described observing defendant running from the direction of where theshooting occurred at a pace that indicated he was fleeing the scene. Thus, "uponevaluating the evidence in a neutral light, weighing the probative force of the testimonyand considering the relative strength of the inferences to be drawn from the proof, wecannot say that the jury failed to give the evidence the weight it should be accorded" (People v Malloy, 166 AD3d1302, 1307 [2018] [citations omitted], affd 33 NY3d 1078 [2019]; seePeople v Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, County Court did not err in admitting autopsyphotographs of the victim at trial. As a general rule, "photographs of a victim's deceasedbody . . . are admissible if they tend to prove or disprove a disputed ormaterial issue, to illustrate or elucidate other relevant evidence, or to corroborate ordisprove some other evidence offered[,] and should be excluded only if their solepurpose is to arouse the emotions of the jury and to prejudice the defendant" (People v Serrano, 173 AD3d1484, 1488 [2019] [internal quotation marks and citations omitted], lvdenied 31 NY3d 937 [2019]; see People v Molineaux, 156 AD3d 1250, 1252 [2017],lv denied 31 NY3d 1085 [2018]). Given that the photographs depicted the entryand exit wounds to the victim, they were properly admitted for the purposes of showingintent and the cause of death (see People v Greenfield, 167 AD3d 1060, 1063 [2018],lv denied 32 NY3d 1204 [2019]). Moreover, the photographs were not overlygruesome and the court provided a proper limiting instruction to the jury. As thephotographs were relevant to material, disputed issues and their sole purpose was not toarouse the jury's emotions or prejudice defendant, the court did not abuse its discretion inadmitting the photographs (see id.).
Defendant contends that he was deprived of the effective assistance of counsel bycounsel's failure to "investigate the facts of the case, review the file, prepare for trial,understand criminal procedure, or prepare an appropriate defense." As these contentionsraise both record-based and nonrecord-based allegations of ineffectiveness, they will beaddressed together in their entirety in the context of defendant's appeal from the denial ofhis CPL 440.10 motion (seePeople v Taylor, 156 AD3d 86, 91-92 [2017], lv denied 30 NY3d 1120[2018]; see also People vThacker, 173 AD3d 1360, 1361 n 2 [2019], lv denied 34 NY3d 938[2019]). A claim of ineffective assistance of counsel "must be supported with proof 'that[the] attorney failed to provide meaningful representation' and that there was no 'strategicor other legitimate explanations for counsel's allegedly deficient conduct' " (People v Wolf, 151 AD3d1459, 1460 [2017], lv denied 32 NY3d 1179 [2019], quoting People v Caban, 5 NY3d143, 152 [2005]; see Peoplev Kelsey, 174 AD3d 962, 965 [2019], lv denied 34 NY3d 982 [2019];People v Bullock, 145AD3d 1104, 1106 [2016]). Counsel's performance must be evaluated to determinewhether the "tactics and strategies were consistent with those of a reasonably competentattorney. The test is reasonable competence, not perfect representation" (People vWolf, 151 AD3d at 1461 [internal quotation marks and citations omitted]). "Theburden is on the defendant to demonstrate the absence of strategic or other legitimateexplanations for counsel's choices" (People v Kelsey, 174 AD3d at 965 [internalquotation marks and citations omitted]).
Defendant alleges, among other things, that counsel failed to effectivelycross-examine prosecution witness Courtney regarding another person that he might haveseen running after the gunfire. He also faults counsel for failing to advance the theorythat Columbus was the shooter based upon phone calls and text messages made byColumbus at the time of the murder. Both of these claims fail. The record reflects thatCourtney was cross-examined extensively about his observations related to the shooting.Courtney testified that after he heard gunshots, he saw a man matching defendant'sdescription headed toward him from across the street while he was walking downWashington Avenue. Contrary to defendant's claim, defense counsel challengedCourtney's testimony that he saw no one other than defendant running toward him fromthe scene of the shooting and persisted in questioning Courtney as to whether otherindividuals were in the vicinity of where he saw defendant. We find that defensecounsel's cross-examination of the witness was proper and did not constitute ineffectiveassistance.
With respect to defendant's claim that counsel was ineffective for failing to advancethe theory that Columbus was the shooter, we find that defendant failed to establish theabsence of strategic reasons for failing to do so. During the hearing, Cornell testified thatdefense counsel was provided with information that when Columbus was interviewed inthe early stages of the investigation, Columbus' cell phone, which was not taken asevidence at that time, contained approximately 55 calls and text messages that were madeduring the late hours of October 18, 2013 and the early morning hours of October 19,2013—before and after the shooting. When Columbus' phone was subsequentlyturned over to police, it appeared that those calls and messages had been deleted. JamesOlsen, a detective, testified that, although Columbus did not have an explanation for thedeletions, he was not a person of interest because the surveillance showed that he waswith the victim at the bar and exited with the victim for the purpose of leaving the area togo to his vehicle. Defense counsel was also provided with evidence regarding the bulletholes to Columbus' vehicle, leading the jury to reasonably conclude, if this testimony wasintroduced to rebut a claim that Columbus was the shooter, that Columbus, upon hearingthe shots fired, ran in such haste that his car door remained open and his chain fell off,thus corroborating Columbus' testimony. Further, the evidence showed that Columbuswent to the bar to pick up Johnson, while defendant fled the scene. Defense counseltestified at the CPL article 440 hearing that an attempt to portray Columbus as theshooter would have been "highly ineffective given all of the footage [which showed] thateveryone that went into that bar was searched very carefully for weapons, and[Columbus] was in there and didn't have a weapon." Defense counsel also recalled that"some kind of a cap" found near the scene of the shooting had defendant's DNA on it.Defense counsel explained that he did not cross-examine Columbus about the deletedphone calls and text messages because they were related to "alleged drug dealing" thatcould have opened the door to allegations that defendant was involved in drug dealing,providing a motive for the People's case. Defense counsel testified that he chose not topursue this strategy because he had no reason to believe that Columbus was involved inthe shooting and made a strategic decision to focus on the lack of direct evidence againstdefendant.
Finally, we reject defendant's contention that counsel was ineffective for failing toobject to the prosecutor's allegedly improper summation, finding that the prosecutor'ssummation was proper and fair comment on the evidence. A failure to make argumentsthat have little chance of success does not amount to ineffectiveness (see People vKelsey, 174 AD3d at 965).
We find that County Court properly denied defendant's CPL 440.10 motion. In lightof defense counsel's strategic reasons for not cross-examining Columbus about thedeleted calls and texts or pursuing a strategy that he was the shooter, defendant failed tomeet his burden of showing that defense counsel's performance was deficient. This Court"will not second-guess counsel's strategy in that regard" (People v Roulhac, 166 AD3d1066, 1069 [2018], lv denied 32 NY3d 1128 [2018]). Notwithstandingdefendant's criticisms, we find that, viewed in totality, defendant was provided withmeaningful representation (seePeople v Lindsey, 172 AD3d 1764, 1767 [2019]; People v Taylor, 156AD3d at 91) We have considered defendant's remaining claims and find that they arewithout merit.
Garry, P.J., Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote *:The charge ofconspiracy in the second degree was dismissed prior to trial. Croley's conviction formurder in the second degree was reversed on appeal and the indictment against him wasdismissed (People v Croley,163 AD3d 1056 [2018]).