| People v Crum |
| 2020 NY Slip Op 03282 [184 AD3d 454] |
| June 11, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Crum, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September13, 2016, convicting defendant, after a jury trial, of murder in the second degree, attemptedmurder in the first and second degrees, assault in the first degree, attempted assault in the firstdegree (two counts), and criminal possession of a weapon in the second degree (two counts), andsentencing him, as a second violent felony offender, to an aggregate term of 35 years to life; andorder, same court (Michele Rodney, J.), entered on or about March 4, 2019, which denieddefendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
At trial, defendant did not preserve any claim relating to cell site location informationobtained without a warrant, and the motion court providently exercised its discretion under CPL440.10 (2) (b) when it rejected defendant's attempt to raise this issue by way of a postconvictionmotion. Defendant asserts that it would have been futile for trial counsel to raise the issuebecause the Supreme Court of the United States had not yet decided Carpenter v UnitedStates (585 US &mdash, 138 S Ct 2206 [2018]), a case that we assume, without deciding,applies here because defendant's direct appeal was pending at the time that case was decided. Weconclude that defendant should not be permitted to avoid the consequences of the lack ofpreservation. Although Carpenter had not yet been decided, and trial counsel may havereasonably declined to challenge the cell site information, defendant had the same opportunity toadvocate for a change in the law as did the litigant who ultimately succeeded in doing so (see People v Stewart, 67 AD3d553, 554 [1st Dept 2009], affd 16 NY3d 839 [2011]). In the closely related contextof preservation, the Court of Appeals has expressly rejected the argument that an "appellantshould not be penalized for his failure to anticipate the shape of things to come" (People vReynolds, 25 NY2d 489, 495 [1969]; see also People v Hill, 85 NY2d 256, 262[1995]). In any event, regardless of the admissibility of the cell site data, there was overwhelmingevidence, including defendant's confession, as well as videotapes that independently establishedhis guilt.
The trial court providently exercised its discretion when it precluded defense counsel frommaking a summation argument that was not based on the evidence in this case, but insteadreferred to news media coverage of unrelated cases. Defendant did not preserve any claim that hewas constitutionally entitled to make this argument, or any of his claims of prosecutorialmisconduct at various stages of the trial, and we decline to review them in the interest of justice.As an alternative holding, we find no basis for reversal. While there were improprieties involvingthe prosecutor's undue emphasis on his personal participation in the case, they were not soegregious as to require reversal (see People v D'Alessandro, 184 AD2d 114, 118-120 [1stDept 1992], lv denied 81 NY2d 884 [1993]), and any error was harmless in light of theoverwhelming evidence of guilt, as discussed above (see People v Crimmins, 36 NY2d230 [1975]).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters not reflected in, or fully explained by, the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). In thealternative, to the extent the existing record permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).
A grand jury's indictment of defendant for depraved indifference murder, after a prior grandjury had indicted him for intentional murder, did not violate CPL 190.75 (3). The secondpresentation did not require permission from the court, because the first indictment cannot bedeemed a dismissal of the depraved indifference count in the absence of any indication that thefirst grand jury was aware of or considered that charge (see People v Wilkins, 68 NY2d269, 274 [1986]). The rule that a person may not be convicted of both intentional and depravedindifference murder (see People v Gallagher, 69 NY2d 525, 529-530 [1987]) applies toverdicts after trial, not indictments. These charges may be presented to a trial jury in thealternative (as occurred in this case, where defendant was acquitted of depraved murder butnevertheless claims a spillover effect). Furthermore, the People were not required to present bothcharges to the same grand jury (see People v Cade, 74 NY2d 410, 415 [1989]).
The court lawfully imposed consecutive sentences for murder and weapon possession,because the record shows that defendant's unlawful possession of a handgun outside his home orplace of business was complete before he shot at the four victims (see People v Brown, 21 NY3d739, 752 [2013]). We perceive no basis for reducing the sentence.Concur—Friedman, J.P., Mazzarelli, Gesmer, Singh, González, JJ.