| People v Green |
| 2021 NY Slip Op 00207 [190 AD3d 1094] |
| January 14, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nagee Green, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of TompkinsCounty (Rowley, J.), rendered November 6, 2017, upon verdicts convicting defendant of thecrimes of assault in the second degree and murder in the second degree, and (2) by permission,from an order of said court, entered January 14, 2020, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment of conviction, without a hearing.
In the early morning hours of August 28, 2016, a brawl erupted on the streets of the City ofIthaca, Tompkins County. Rahiem Williams and Anthony Nazaire were stabbed by aknife-wielding combatant during the fighting, and Nazaire succumbed to his injuries. Aninvestigation pointed to defendant as the perpetrator, and he was charged in an indictment withvarious offenses. Defendant unsuccessfully moved to suppress statements he had made during arecorded interview with investigators, after which the matter proceeded to trial. The jury wasunable to reach a verdict on the counts relating to the stabbing of Nazaire, prompting CountyCourt to declare a mistrial on those counts and accept a partial verdict finding defendant guilty ofassault in the second degree relating to the stabbing of Williams. The second trial on the countsrelating to Nazaire ended with the jury finding defendant guilty of murder in the second degree.County Court sentenced defendant to 17 years to life in prison on the murder conviction and to aconsecutive prison term of three years, followed by three years of postrelease supervision, on theassault conviction. Defendant thereafter moved to vacate the judgment of conviction on theground of ineffective assistance of counsel. County Court denied that motion. Defendant appealsfrom the judgment of conviction and, by permission, from the denial of his CPL article 440motion.
We affirm. The proof at the first trial reflected that the melee arose from a run-in betweenWilliams and Nazaire, who knew each other and were walking together, and another group. Thedispute drew in acquaintances of both groups who were in the area, and mayhem ensued whenWilliams was punched. Defendant knew the group that was arguing with Williams and Nazaire,and he was identified as an active participant in the brawl who had been staring Williams downbefore it began. The trial testimony and social media videos of the brawl reflected that defendantwas screaming, "I kill out here" during the fighting, swung a knife at another combatant, then rantoward Williams and Nazaire. Williams testified that defendant had an encounter with Nazaireand then approached him, at which point Williams grabbed defendant by his backpack and theyboth fell to the ground. Lying on his right side underneath defendant, Williams tried to shoulderdefendant off of him and called out to Nazaire for assistance. Nazaire came over, puncheddefendant twice in the shoulder or back, then collapsed and began bleeding out of his mouth asthe result of a stab wound [*2]to his chest, prompting Williams tocry for help as defendant got up and left the scene. Williams realized later that he had also beenstabbed multiple times in the back, apparently with a knife recovered nearby that had Williams'DNA on the blade and that one witness stated appeared to be the one held by defendant earlier.Defendant further made statements to investigators in which he acknowledged that both Williamsand Nazaire were stabbed, perhaps unintentionally, as he tried to get away from them.
Viewing the foregoing proof in the light most favorable to the People, as is required inassessing the legal sufficiency of the evidence (see People v Lendof-Gonzalez, 36NY3d 87, 91-92 [2020]), defendant brandished a knife inthe melee with the stated intent to "kill," charged at Nazaire and then Williams, and stabbedWilliams while they struggled on the ground. The intent of a defendant "may be inferred from thetotality of the circumstances presented and the natural and probable consequences of his or heractions" and, contrary to defendant's contention, this proof was legally sufficient for the jury tofind that he intentionally injured Williams by repeatedly stabbing him with the knife (People v Stover, 174 AD3d 1150,1151 [2019], lv denied 34 NY3d 954 [2019]; see Penal Law§ 120.05 [2]; People vSoriano, 121 AD3d 1419, 1420-1421 [2014]; People v Taylor, 118 AD3d 1044, 1045 [2014], lv denied23 NY3d 1043 [2014]). Further, we defer to the jury's determination to credit that proof overdefendant's suggestion that he merely held the knife while Williams repeatedly impaled himselfupon it during their struggle, and our independent review leaves us satisfied that the assaultconviction was not against the weight of the evidence (see People v Townsend, 144 AD3d 1196, 1196-1197 [2016], lvdenied 28 NY3d 1189 [2017]; People v Gibson, 141 AD3d 1009, 1012 [2016]; People vTaylor, 118 AD3d at 1046-1047).
Next, we reject defendant's argument that the second trial was barred by double jeopardy.Although double jeopardy can come into play where a mistrial is granted over a defendant'sobjection, there is no such difficulty if "the defendant requests or consents to" one (People v Ellis, 182 AD3d 791, 792[2020], lv denied 35 NY3d 1026 [2020]; see Matter of Suarez v Byrne, 10 NY3d 523, 532-534 [2008];People v Ferguson, 67 NY2d 383, 388 [1986]). Defendant implicitly gave that consentafter County Court proposed that it take a partial verdict and schedule a retrial on the countsrelating to Nazaire for which the jury was unable to agree (see CPL 310.70 [1] [a]; [2]),at which point defense counsel agreed to a partial verdict and offered no objection to the plan fora retrial (see Matter of Gentil vMargulis, 26 NY3d 1027, 1028 [2015]; Matter of Marte v Berkman, 16 NY3d 874, 875-876 [2011]; People v Haggray, 164 AD3d1522, 1523 [2018], lv denied 32 NY3d 1111 [2018]; Matter of Matthews vNicandri, 252 AD2d 657, 658 [1998], appeal [*3]dismissed 92 NY2d 945 [1998]). The fact that defense counselgave that consent immediately after County Court denied his request for a jury charge that wouldhave limited the factual scenarios under which the jury could find defendant guilty on theremaining counts did not, contrary to defendant's contention, call the voluntariness of the consentinto question. Even assuming that County Court erred in declining to give the charge, such wassimply one factor for defense counsel to consider in assessing how the defense had fared at thetrial and whether a retrial would be in defendant's best interests (see United States vDinitz, 424 US 600, 608 [1976]; People v Ferguson, 67 NY2d at 389-390).Defendant accordingly waived any objection to the second trial on double jeopardy grounds, andwe need not consider whether there would have been " 'manifest necessity' for themistrial" absent that waiver (People v Ferguson, 67 NY2d at 388, quoting UnitedStates v Perez, 22 US 579, 580 [1824]).
We therefore turn to the second trial and the evidence presented at it.[FN1] At the outset, the People wereproperly permitted to present evidence that conformed to an amended summary of facts,functioning as their bill of particulars, in which they altered the sequence in which defendantallegedly stabbed Williams and Nazaire but "did not change or limit the [underlying] theory ofprosecution" that defendant had intentionally stabbed both in a rapid sequence during the brawl(People v Medina, 233 AD2d 927, 927 [1996], lv denied 89 NY2d 926 [1996];see CPL 200.95 [8]; People v Moore, 274 AD2d 959, 959 [2000], lvdenied 95 NY2d 868 [2000]).[FN2] The evidence at the second trial was essentiallyidentical to that presented at the first, but it is worth repeating that defendant threatened one manwith a knife while warning, "I kill out here," charged toward Nazaire, then Williams, and toldinvestigators that both were stabbed in the scuffle. The later autopsy on Nazaire's body revealedthat the knife had been plunged into his chest with sufficient force to penetrate cartilage andsever his subclavian vein and windpipe. The pathologist who performed that autopsy testifiedthat Nazaire would have collapsed from massive internal bleeding about a minute after thewound was inflicted, and Nazaire did collapse shortly after his initial encounter with defendant,remaining upright just long enough to assist Williams as Williams struggled with, and wasstabbed by, defendant on the ground.
When viewed in the light most favorable to the People, the knife-wielding defendant's threatsto "kill" before running towards Nazaire and Williams, his admissions to investigators, hisrepeated stabbing of Williams after encountering Nazaire, the severity of Nazaire's injuries andthe force required to cause them, and the timing of Nazaire's collapse constituted legallysufficient evidence from which the jury could find that defendant intentionally stabbed Nazaire inthe chest with the aim of killing [*4]him (see Penal Law§ 125.25 [1]; People v Murphy, 128 AD2d 177, 181-182 [1987], affd forreasons stated below 70 NY2d 969 [1988]; People v Haire, 96 AD2d 1110, 1111[1983]). As for the weight of the evidence, a different verdict would not have been unreasonablegiven the lack of any eyewitness account or video recording of the stabbing, the questions as tohow reliable defendant's statements to investigators were, and the lack of DNA testing that tieddefendant or Nazaire to the knife recovered at the scene. Video evidence and Williams' testimonyconfirmed, however, that an armed defendant ran toward Nazaire. Further, the individual whotested samples taken from the recovered knife testified that the handle had a mixture of DNAprofiles that could not be tied to any one person and that any genetic material from Nazaire onthe blade could have been "masked" by that of Williams when the knife was used to stab him.The jury credited the proof that defendant fatally stabbed Nazaire notwithstanding thoseweaknesses in the People's case and, "viewing the evidence in a neutral light and deferring to thejury's resolution of issues of credibility, we find that the verdict is not against the weight of theevidence" (People v Vandenburg, 189 AD3d 1772, 1776 [2020]; see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Watson, 174 AD3d 1138,1140 [2019], lv denied 34 NY3d 955 [2019]).
Defendant next argues that County Court erred in refusing to suppress the statements hemade to investigators in which, after he was Mirandized, the investigators allegedly coerced himinto acknowledging his involvement in the stabbings by implying that there was conclusiveevidence that he had stabbed Nazaire and encouraging him to come clean. This argumentoverlooks that "[t]he police are permitted to lie or use some deceptive methods in theirquestioning as long as the deception was not so fundamentally unfair as to deny due process. . . [and] was not so extensive as to induce a false confession or overcome [a]defendant's will" (People vBerumen, 46 AD3d 1019, 1020-1021 [2007] [internal quotation marks, brackets andcitations omitted], lv denied 10 NY3d 808 [2008]; accord People v Henry, 173 AD3d 1470, 1478 [2019], lvdenied 34 NY3d 932 [2019]). Misleading a defendant as to the strength of the evidenceagainst him or her—including by suggesting that he or she had been filmed or seencommitting the crime or had been connected to it by physical evidence—or indicating"that he or she might help himself or herself by cooperating" are not fundamentally unfairpractices that would deprive a defendant of due process (People v Wolfe, 103 AD3d 1031, 1035 [2013] [internal quotationmarks, brackets and citation omitted], lv denied 21 NY3d 1021 [2013]; see People v Dishaw, 30 AD3d689, 690-691 [2006], lv denied 7 NY3d 787 [2006]; People v Dickson, 260AD2d 931, 932 [1999], lv denied 93 NY2d 1017 [1999]; People v Hassell, 180AD2d 819, 820 [1992],[*5]lv denied 79 NY2d 1050[1992]). Our review of the recorded interview and the suppression hearing testimony satisfies usthat the investigators did not go out of bounds in using those techniques and, accordingly, weagree with County Court "that the People satisfied their burden of demonstrating thevoluntariness of defendant's statements beyond a reasonable doubt" (People v Weaver, 167 AD3d 1238,1241 [2018], lv denied 33 NY3d 955 [2019]; see People v Thomas, 22 NY3d 629, 641 [2014]; People vWolfe, 103 AD3d at 1035).
Defendant's other contentions upon his direct appeal do not demand extended discussion.First, County Court properly precluded testimony at the first trial from individuals who overhearda conversation in which a man worried that he had left a knife with his fingerprints on it at thescene of the brawl, which would have only been relevant to establish the truth of the out-of-courtstatements and was therefore inadmissible hearsay to which the state of mind exception did notapply (see People v Reynoso, 73 NY2d 816, 819 [1988]; People v Kachadourian, 184 AD3d1021, 1023 [2020], lv denied 35 NY3d 1113 [2020]; People v Ramsaran, 154 AD3d1051, 1053 [2017], lv denied 30 NY3d 1063 [2017]). Defendant's efforts to justifythat testimony on other grounds, as well as his argument that he should have been permitted topresent it at the second trial, are unpreserved and do not warrant corrective action in the interestof justice (see CPL 470.05 [2]; People v Nieves, 67 NY2d 125, 136-137 [1986];People v Robinson, 36 NY2d 224, 228 [1975]; People v Evans, 31 AD3d 664, 664 [2006], lv denied 7NY3d 847 [2006]). Second, County Court properly discharged a juror at the second trial as"grossly unqualified" (CPL 270.35 [1]) after it emerged that a regular spectator in the courtroomwhom the juror knew was defendant's grandfather, information that caused the juror to becomevisibly distressed and admit that it would be "challenging" and "very difficult" for him to be fairunder the circumstances (see People vWilliams, 147 AD3d 983, 984 [2017], lv denied 29 NY3d 1038 [2017]; People v Guy, 93 AD3d 877, 878[2012], lv denied 19 NY3d 961 [2012]; People v Galvin, 112 AD2d 1090,1090-1091 [1985], lv denied 66 NY2d 919 [1985]). Defendant's remaining contentionson his direct appeal, to the extent that he continues to pursue them, have been examined andrejected.
We accordingly turn to defendant's argument, relating primarily to his CPL article 440motion, that he received the ineffective assistance of counsel. To succeed on that claim,defendant was obliged to come forward "with proof that [the] attorney failed to providemeaningful representation and that there was no strategic or other legitimate explanations forcounsel's allegedly deficient conduct" (People v Wolf, 151 AD3d 1459, 1460 [2017] [internal quotationmarks and citations omitted], lv denied 32 NY3d 1179 [2019]; accord People v White-Span, 182AD3d 909, 914 [2020], lv denied 35 NY3d 1071[*6][2020]). Defendant focused upon three purported deficiencies and,in his CPL article 440 motion papers, provided the affirmation of his lead trial counsel discussingthem.
The first alleged error was the decision of trial counsel to refrain from presenting thetestimony of an eyewitness who gave "uniformly non-committal and vague" answers wheninterviewed before the first trial and whose reluctance to testify and claimed lack of recollection,in counsel's view, raised concerns that putting him on the stand would reek of desperation anddamage the defense's standing with the jury. The purported error was the "strategic decision[ ] ofa 'reasonably competent attorney,' " in other words, and the fact that trial counsel wouldhave pursued a different course in hindsight does not reflect ineffectiveness (People vBenevento, 91 NY2d 708, 712-713 [1998], quoting People v Satterfield, 66 NY2d796, 799 [1985]; see People v Baldi, 54 NY2d 137, 146 [1981]; People v Brooks,283 AD2d 367, 368 [2001], lv denied 96 NY2d 916 [2001]).
The second alleged error occurred during voir dire at the second trial, when trial counselfailed to question or challenge a soon-to-be empaneled juror who disclosed that the DistrictAttorney had done legal work for him and his family while in private practice and that their priorrelationship would be "in the back of [his] mind," but would not make it "impossible" for him tobe fair and impartial. Trial counsel averred that he did not know why he failed to inquire furtherinto those statements, but the record shows that he questioned the potential juror on othersubjects and could have easily been satisfied from the answers that the juror would be fair andwas "acceptable . . . from the defense point of view" (People v Thompson, 21 NY3d555, 560 [2013]). Accordingly, even accepting trial counsel's representation that there wasno strategic reason for his failure to specifically ask about the prior attorney-client relationship,"defendant is entitled to a fair trial, not one that is error free," and there is no reason to believethat the juror was biased or that the potential error otherwise deprived defendant of a fair trial (People v Pinkney, 90 AD3d 1313,1316 [2011]; see People v Thompson, 21 NY3d at 560; People v Perry, 154 AD3d 1168,1171 [2017]).
As for the third and final alleged error, trial counsel acknowledged that he simply forgot torequest a detailed jury charge regarding the voluntariness of defendant's statement toinvestigators at either trial (see generally CJI2d[NY] Statements [Admissions,Confessions]). Even in the absence of that charge, however, trial counsel made the investigators'treatment of defendant during the interview a prominent issue at both trials and discussed it atlength in his summations. Under these circumstances, and noting that both juries were charged toconsider "the circumstances under which [the statement] was made" in deciding what weight togive it, failing to request a specific [*7]jury charge was not thetype of isolated error so "egregious and prejudicial as to compromise . . . defendant'sright to a fair trial" and constitute ineffective assistance (People v Caban, 5 NY3d 143, 152 [2005]; see People vSnyder, 240 AD2d 874, 875 [1997], lv denied 91 NY2d 881 [1997]). The foregoingcomplaints accordingly do not reflect ineffective assistance in isolation and, even when takentogether, are rare missteps in what the record as a whole confirms was an adroit performance bytrial counsel, marked by appropriate pretrial motion practice and a trial defense so skillful thatthe first trial ended with a deadlocked jury on the most serious charges against defendant (see People v Mesko, 150 AD3d1412, 1414-1415 [2017], lv denied 29 NY3d 1131 [2017]; People v Perry, 148 AD3d 1224,1225-1226 [2017]). Thus, inasmuch as the record shows that defendant received meaningfulrepresentation, and the nonrecord facts alleged in his CPL article 440 motion would not suggestotherwise if true, County Court properly denied his motion without a hearing (see CPL440.30 [4] [b]; People v Delorbe, 35NY3d 112, 121 [2020]; People vSantana, 179 AD3d 1299, 1303-1304 [2020], lv denied 35 NY3d 973[2020]).
Egan Jr., J.P., Pritzker and Colangelo, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1:By consenting to the mistrial,defendant agreed to "give[ ] up his right to be tried by a particular tribunal, and subject[ ] himselfto a second trial" on the counts relating to the stabbing of Nazaire (People v Ferguson, 67 NY2dat 390; see People v Kappen, 142 AD3d 1106, 1107 [2016], lv denied28 NY3d 1185 [2017]; see also Matter of Suarez v Byrne, 10 NY3d at 534). Although defendant commenced a CPLR article 78 proceeding in this Court to prohibit the retrial, we denied his related motion to stay the retrial and the retrial then proceeded. In any event, defendant's actions in this regard do not change the conclusion that, at the time the mistrial was granted, he consented to such mistrial, thus rendering his actions after that point of no consequence (see generally Matter of Gentil v Margulis, 26 NY3d at 1028; Matter of Marte v Berkman, 16 NY3d 874, 877 [2011]). He istherefore foreclosed from questioning the legal sufficiency of the proof presented at the first trialregarding those counts or arguing that the lack thereof functioned as "an acquittal for purposes ofdouble jeopardy" (People v Biggs, 1NY3d 225, 229 [2003]; see People v Haggray, 164 AD3d at 1523; People vKappen, 142 AD3d at 1107; see also Matter of Suarez v Byrne, 10 NY3d at 534).
Footnote 2:The original summary of facts"apprise[d] defendant of the theory to be advanced at trial" with regard to the stabbing ofWilliams and, as a result, permitted defense counsel to prepare and conduct a defense on theassault count for which defendant was convicted at the first trial (People v Earel, 220AD2d 899, 899 [1995], affd 89 NY2d 960 [1997]; see CPL 200.95 [1] [a];People v Byrnes, 126 AD2d 735, 736 [1987]). Although defendant may well be correct inarguing that it did not do so with regard to the counts relating to the stabbing of Nazaire, CountyCourt aptly observed that the issue was a moot point given that the first trial ended in a hung juryon those counts. By the time of the second trial, defendant was indisputably on notice of thePeople's theory as to when and how Nazaire was stabbed.