| People v Wilkinson |
| 2020 NY Slip Op 03808 [185 AD3d 734] |
| July 8, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Keith Wilkinson, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Barbara A. Zambelli, J.), rendered August 11, 2015, convicting him of murder in the seconddegree (two counts), robbery in the first degree, burglary in the first degree, and assault in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by providing that the sentence imposedupon the conviction of burglary in the first degree shall run concurrently with the sentenceimposed upon the conviction of assault in the second degree; as so modified, the judgment isaffirmed.
The defendant was previously convicted, inter alia, of two counts of murder in the seconddegree, after a jury trial. That judgment of conviction was reversed by this Court and a new trialwas ordered (see People vWilkinson, 120 AD3d 521 [2014]). After the second jury trial, the defendant wasconvicted of murder in the second degree (two counts), robbery in the first degree, burglary in thefirst degree, and assault in the second degree.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]).
Prior to the defendant's second trial, the Supreme Court conducted a Sirois hearing(see People v Sirois, 92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92AD2d 405 [1983]) to determine whether certain testimony elicited at the defendant's first trialwould be admitted at the second trial because the defendant's misconduct induced two witnessesto be unavailable to testify at the second trial. The court determined that the sworn testimony ofMarlon Nelson from the defendant's first trial would be admitted at the second trial and limitedthe defendant's cross-examination of Dania Sayers at the second trial regarding her failure torecall during the first trial.
Prior testimony of a witness may be admitted as direct evidence at trial where the witness isunavailable, or is unwilling to testify, or is influenced to give false trial testimony, thereby beingrendered effectively unavailable (seePeople v Smart, 23 NY3d 213, 220 [2014]; People v Geraci, 85 NY2d 359, 366[1995]). The evidence must establish that the witness's unavailability or unwillingness wasprocured by intentional misconduct on the part of the defendant which was aimed at preventingthe witness from testifying truthfully (see People v Smart, 23 NY3d at 220; People vGeraci, 85 NY2d at 366). The People bear the burden of establishing at the Siroishearing, by clear and convincing evidence, that the defendant engaged in conduct aimed atpreventing the witness from testifying and caused that witness's decision not to testify or to pleadthe Fifth Amendment (see People vMcCune, 98 AD3d 631, 632 [2012]). " 'Recognizing the surreptitious nature ofwitness tampering and that a defendant engaging in such conduct will rarely do so openly,resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantialevidence in making the requisite determination' " (People v Leggett, 107 AD3d 741, 742 [2013], quoting People v Encarnacion, 87 AD3d81, 87 [2011]; see People v Geraci, 85 NY2d at 369). Misconduct is defined"broadly to include intimidation and bribery, threats, and the use of a relationship to improperlyprocure a witness's silence" (People v Encarnacion, 87 AD3d at 86 [citation omitted]; see People v Jernigan, 41 AD3d331, 332 [2007]).
We agree with the Supreme Court's determination that the People established, by clear andconvincing evidence, that the defendant's intentional misconduct during the first trial resulted inNelson being unavailable to testify at the second trial and caused Sayers's failure to recall at thefirst trial because of her concern for the safety of herself and her family (see People vSmart, 23 NY3d at 220; People v Geraci, 85 NY2d at 366).
With regard to Nelson, the evidence demonstrated that the defendant was both directly andindirectly responsible for procuring Nelson's absence at the second trial as a result of shotshaving been fired at Nelson's car, and threats having been made about kidnaping his son and thatNelson should leave the state.
With regard to Sayers, the evidence showed that the defendant had physically abused herrepeatedly in the past and had threatened to kill her and/or her grandmother if she testified. Toallow the defendant to impeach Sayers with her testimony from the first trial regarding her failureto recall would reward the defendant for his intimidation of her (see People v Bosier, 6 NY3d 523,528 [2006]). Importantly, during the second trial, the defendant had a full opportunity tocross-examine Sayers using her grand jury testimony and her prior written statements, whichincluded letters and emails sent by Sayers. In fact, at the second trial, defense counsel, during hiscross-examination of Sayers, opened the door for Sayers to explain that her prior inconsistentstatements were prompted by her fear of the defendant. Defense counsel even elicited testimonyfrom Sayers regarding her prior testimony and that she feared for her safety because of thedefendant.
In any event, an alleged violation of a defendant's right to confrontation is subject to harmlesserror analysis (see Cruz v New York, 481 US 186, 194 [1987]; People v Hardy, 4 NY3d 192[2005]). Here, there was overwhelming evidence of the defendant's guilt, and there was noreasonable possibility that any error in curtailing the defendant's ability to fully cross-examineSayers regarding her testimony from the first trial affected the jury's verdict (see People v Douglas, 4 NY3d777, 779 [2005]). In fact, had the defendant been able to further impeach Sayers at thesecond trial with her testimony that she did not recall at the first trial, any inconsistencies couldeasily be explained by Sayers testifying that she feared for her safety at the time of the first trial,thereby further bolstering the People's case. Accordingly, any claimed error with regard to thecross-examination of Sayers was harmless beyond a reasonable doubt (see id. at779).
To the extent that any of the prosecutor's summation comments were improper, they were notso flagrant or pervasive as to deprive the defendant of a fair trial (see People v Williams, 147 AD3d983, 984 [2017]; People vFields, 115 AD3d 673, 674 [2014]).
Contrary to the defendant's contention, the testimony of fellow inmates concerning thedefendant's threats to kidnap and/or kill witnesses was properly admitted as evidence of thedefendant's consciousness of guilt of the murder (see People v Viera, 133 AD3d 622, 624 [2015]; People v Green, 92 AD3d 953, 954[2012]).
The defendant's contention that his right to present a defense was curtailed, based on theSupreme Court's limitation of the cross-examination of two witnesses regarding other possiblesuspects, is unpreserved for appellate review, as the defendant did not raise this particularcontention at trial (see CPL 470.05 [2]; People v Lopez, 82 AD3d 1264, 1264 [2011]; People v Haddock, 79 AD3d 1148,1149 [2010]). In any event, where, as here, "the evidence is so remote and speculative that it doesnot sufficiently connect the third party to the crime," it was properly precluded (People v Powell, 27 NY3d 523,531 [2016]; see People v Cepeda, 48AD3d 294, 294 [2008]).
A determination to substitute or disqualify counsel falls within the trial court's discretion (see People v Watson, 26 NY3d620, 624 [2016]; People vCarncross, 14 NY3d 319, 330 [2010]). " 'That discretion is especially broadwhen the defendant's actions with respect to counsel place the court in the dilemma of having tochoose between undesirable alternatives, either one of which would theoretically provide thedefendant with a basis for appellate review' " (People v Watson, 26 NY3d at 624,quoting People v Tineo, 64 NY2d 531, 536 [1985]; see People v Carncross, 14NY3d at 330). Here, the Supreme Court carefully balanced the defendant's right to counsel of hisown choosing against his right to effective assistance of counsel, and properly determined, basedon the potential conflict, that the safer course of action was to relieve the defendant's counsel andappoint new counsel (see People v Watson, 26 NY3d at 628; People v Carncross,14 NY3d at 330).
Since some of the defendant's allegations raised in his pro se supplemental brief that he wasdeprived of the effective assistance of counsel involve matter appearing on the record, whileothers involve matter outside the record, the defendant's contention presents a "mixed claim ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Freeman, 93 AD3d 805, 806 [2012]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety, and we decline to review the claim on this direct appeal (see People vFreeman, 93 AD3d at 806; People v Maxwell, 89 AD3d at 1109).
As the People concede, the crime of burglary in the first degree did not involve disparate orseparate acts from the crime of assault in the second degree, and therefore, the sentence imposedupon the conviction of burglary in the first degree must run concurrently with the sentenceimposed upon the conviction of assault in the second degree (see People v Gabbidon, 272AD2d 411, 412 [2000]; People v Campos, 206 AD2d 633, 636 [1994]). However,contrary to the defendant's contention, the sentences imposed upon the convictions of murder inthe second degree (felony murder) and the conviction of robbery in the first degree relating to onevictim involved disparate and separate acts from the assault relating to the other victim, andtherefore, consecutive sentences were properly imposed (see People v Rodriguez, 25 NY3d 238, 244 [2015]).
The defendant's remaining contention raised in his pro se supplemental brief is unpreservedfor appellate review and, in any event, without merit. Scheinkman, P.J., LaSalle, BrathwaiteNelson and Iannacci, JJ., concur. [Prior Case History: 2015 NY Slip Op 32677(U).]