| People v Davis |
| 2021 NY Slip Op 06883 [200 AD3d 1200] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Maurice Davis, Appellant. |
Dana L. Salazar, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered October 17, 2018, upon a verdict convicting defendant of the crimes of grand larceny inthe fourth degree, criminal possession of stolen property in the fourth degree and petitlarceny.
On September 16, 2017, defendant and his brother allegedly stole two televisions and asound bar from a Walmart store located in the Town of East Greenbush, Rensselaer County.Defendant's brother was arrested while allegedly engaged in a similar crime at the store the nextday, and, during an ensuing custodial interview with police, he named defendant as hisaccomplice in the subject theft. Officers with the East Greenbush Police Department (hereinafterEGPD) then presented the brother with still images from the store's surveillance video at the timeof the subject theft, and the brother identified defendant as the person in certain of those stills,further providing defendant's date of birth. With that information, officers obtained a knownphotograph of defendant (hereinafter referred to as the known photograph) from a lawenforcement database, compared that photograph to the still images and arrested him. Defendantwas thereafter charged by indictment with grand larceny in the fourth degree, criminal possessionof stolen property in the fourth degree and petit larceny. He thereafter moved for, among otherrelief, a Wade hearing, after which County Court determined that the aforementionedidentification was not overly suggestive. After a one-day jury trial, defendant was found guilty ascharged. Defendant was thereafter sentenced, as a second felony offender, to concurrent prisonterms of 2 to 4 years for his grand larceny and possession convictions and to a lesser concurrentterm for the petit larceny conviction. Defendant appeals.
Defendant contends that the verdict was legally insufficient and against the weight of theevidence because the People did not establish his identity. "When considering a challenge to thelegal sufficiency of the evidence, [this Court] view[s] the evidence in the light most favorable tothe People and evaluate[s] whether there is any valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury on the basis of theevidence at trial and as a matter of law satisfy the proof and burden requirements for everyelement of the crime charged" (People vLukosavich, 189 AD3d 1895, 1895-1896 [2020] [internal quotation marks and citationsomitted]). Importantly, "[a] defendant may not be convicted of any offense upon the testimony ofan accomplice unsupported by corroborative evidence tending to connect the defendant with thecommission of such offense" (CPL 60.22 [1]). "[W]hen undertaking a weight of the evidencereview, we must first determine whether, based on all the credible evidence, a different findingwould not have been unreasonable and then, if not, weigh the relative probative [*2]force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony to determine if the verdict issupported by the weight of the evidence" (People v Lukosavich, 189 AD3d at 1896[internal quotation marks and citations omitted]). "When conducting this review, we consider theevidence in a neutral light and defer to the jury's credibility assessments" (People v Butcher, 192 AD3d 1196,1198 [2021] [internal quotation marks and citations omitted], lv denied 36 NY3d 1118[2021]).
"Grand larceny in the fourth degree requires the People to prove that, with intent to depriveanother of property or to appropriate the same to himself, herself or to a third person, thedefendant steals property having a value of more than $1,000" (People v Lukosavich, 189AD3d at 1896; see Penal Law §§ 155.05 [1]; 155.30 [1]). As tocriminal possession of stolen property in the fourth degree, the People must prove that thedefendant "knowingly possesse[d] stolen property, with intent to benefit himself[,] [herself] or aperson other than an owner thereof or to impede the recovery by an owner thereof, and when. . . [t]he value of the property exceeds [$1,000]" (Penal Law § 165.45[1]). "A person is guilty of petit larceny when he [or she] steals property" (Penal Law§ 155.25). Finally, "[a]s with all convictions, the People must prove the issue ofidentity beyond a reasonable doubt—that is, that the defendant was the person whocommitted the charged crimes" (Peoplev Green, 194 AD3d 1106, 1108 [2021]).
At trial, the assistant manager of the store testified that, on September 16, 2017, twotelevisions and a sound bar had been taken from the store and that the value of these items totaled$2,174 before sales tax. He further testified that, upon notification of pushed-open entrance doorsin a closed section of the store, he reviewed surveillance video of the door, and he subsequentlysaved the footage to a CD that he gave to police when he reported the incident, along with stillimages from that video. The CD with the video and four of the still images were admitted intoevidence and published to the jury. The CD contains six videos allegedly depicting defendantpushing a cart to the electronics department where the individual alleged to be the brother loadsinto the cart two large, flat boxes bearing the Samsung logo and one relatively smaller box. Twominutes later, surveillance video shows the two individuals exiting the store through anapparently nonresponsive automatic door, which the individuals then pushed open to exit; theindividual alleged to be defendant physically pushed the cart containing the threeabove-mentioned boxes through the doors and out of the store. The face of the person alleged tobe defendant is visible in the surveillance video just before he leaves the store.
Griffin Hotaling, an officer with the EGPD, testified that he responded to the assistantmanager's call about the larceny. [*3]Hotaling reviewed thesurveillance video and still images provided by the assistant manager and that, at some point theday after the alleged theft, he was able to identify both individuals in the still images. Hotalingidentified defendant in court as one of the individuals depicted. Michael Guadagnino, a detectivewith the EGPD, testified that he spoke to the brother who gave him defendant's name inconnection with the subject crimes.[FN1] Guadagnino stated that he then compared oneof the still images to the known photograph associated with defendant's name in the "RICIsystem" and concluded that the individual depicted in the still image was defendant. A copy ofthe known photograph was received into evidence and Guadagnino identified defendant as theindividual depicted in the surveillance video.
The brother testified, after asserting his Fifth Amendment privilege againstself-incrimination, that he did not recall going with defendant to the store on September 16, 2017and stealing two televisions and a sound bar. He also did not recall his conversation withHotaling or Guadagnino during their investigation. The People then showed the brother thesurveillance video still images, and he testified that he had never seen the images before but thatone of the individuals depicted in two of the images looked like him and the individual in anotherof the images "could be" defendant; with respect to the latter, the brother qualified that he wasunsure because the image was "kind of blurry."
Viewed in the light most favorable to the People, we find that the independent evidenceproffered by the People—the surveillance video coupled with the testimony of the officersand the known photograph—sufficiently corroborated the very equivocal accomplicetestimony offered by the brother (seePeople v Pichardo, 160 AD3d 1044, 1047-1048 [2018], lv denied 31 NY3d 1151[2018]; People v Myrick, 135 AD3d1069, 1073 [2016]; People vPagan, 103 AD3d 978, 981 [2013], lv denied 21 NY3d 1018 [2013]).[FN2] As to the weight of the evidence,another verdict would not have been unreasonable because the jury could have discredited theequivocal testimony from the brother and found certain of the low-quality still images not to beprobative, and rationally concluded that the People did not prove, beyond a reasonable doubt,that defendant is one of the individuals depicted. That said, viewing the evidence in a neutrallight, the surveillance video, still images, known photograph and testimony from the brotherestablishes defendant's identity as one of the perpetrators of the subject crimes. Further, thesurveillance video and the assistant manager's testimony established the remaining elements ofeach count—that the items' total value exceeded $1,000 and that the items were takenwithout permission by bringing them out of the store through an otherwise inoperative exteriordoor in a section of the store closed to shoppers (see Penal Law§§ 155.05 [1]; 155.25, 155.30[*4][1]; 165.45[1])—from which the jury could reasonably infer defendant's culpable mental state (see People v Sanon, 179 AD3d1151, 1155 [2020], lv denied 35 NY3d 973 [2020]; People v Shortell, 173 AD3d 1364,1366 [2019], lv denied 34 NY3d 937 [2019]).
Defendant also contends that the admission of Guadagnino's testimony about the statementsmade by the brother during the police interview violated defendant's Confrontation Clause rights.Defendant, however, only objected to Guadagnino's testimony on hearsay grounds—atwhich point the People clarified that it was admitted for a nonhearsay purpose. Thus, hiscontention with respect to the Confrontation Clause is unpreserved (see People v Wright, 81 AD3d1161, 1164-1165 [2011], lv denied 17 NY3d 803 [2011]).
Defendant argues that County Court improperly permitted the People to call the brother as awitness because he expressed his intention to invoke his Fifth Amendment privilege againstself-incrimination. "The decision to permit the People to call a witness who has already indicatedthat he or she will refuse to testify is one resting within the sound discretion of the trial court.Once a witness has communicated that intent, the trial court must determine whether any interestof the [s]tate in calling the witness outweighs the possible prejudice to [the] defendant resultingfrom the unwarranted inferences that may be drawn by the jury from the witness's refusal totestify" (People v Berg, 59 NY2d 294, 298 [1983] [citations omitted]; see People vDiaz, 249 AD2d 698, 700 [1998], lv denied 92 NY2d 924 [1998]). "Absent aconscious and flagrant attempt by the prosecutor to build a case out of the inferences arising fromthe use of the testimonial privilege or without some indication that the witness's refusal to testifyadds critical weight to the People's case in a form not subject to cross-examination, reversal isnot warranted" (People v Alston, 71AD3d 684, 685 [2010] [internal quotation marks and citation omitted], lv denied 14NY3d 885 [2010]; see People vBerry, 27 NY3d 10, 16 [2016]).
It is clear from the record that the People were of the opinion that the brother could notinvoke his Fifth Amendment privilege because he had already pleaded guilty. Regardless of theaccuracy of that assumption (see Mitchell v United States, 526 US 314, 321-322 [1999]),the fact that the People believed that the privilege was unavailable and, supported by that belief,successfully requested that County Court compel the brother to testify cuts against a finding thatthe People sought to build their case on the brother's assertions of testimonial privilege (seePeople v Berg, 59 NY2d at 298; People v Diaz, 249 AD2d at 700). Moreover, duringthe closing statement, the People did not reference the brother's invocation of the privilege norsuggest that any inference should be drawn therefrom (see People v Diaz, 249 AD2d at700). As to the utilization of inferences drawn from the brother's invocation [*5]of the Fifth Amendment privilege to "unfairly prejudice. . . defendant by adding critical weight to the [People's] case in a form not subjectto cross-examination" (People v Berry, 27 NY3d at 16 [internal quotation marks andcitations omitted]), the brother only invoked the privilege three times, each time County Courtdirected him to answer,[FN3] thus rendering those responses subject tocross-examination, and, as a result, "there was no danger of the jury drawing improperinferences" (id. at 17 n 2; compare People v Vargas, 86 NY2d 215, 218-219[1995]). Consequently, the court did not abuse its discretion in permitting the People to call thebrother to testify despite foreknowledge of his intent to invoke testimonial privilege.
Defendant also contends that County Court erred in denying two of his motions for amistrial. As a general rule, the decision to grant or deny a mistrial is a matter within the trialcourt's discretion (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Silver, 168 AD3d 1225,1227 [2019], lv denied 33 NY3d 954 [2019]). The first motion for a mistrial was basedupon alleged prosecutorial misconduct during the opening statement. To that end, a mistrialmotion alleging prosecutorial misconduct will be granted only where such misconductcompromises a defendant's right to a fair trial (see People v Doherty, 37 AD3d 859, 860 [2007], lv denied9 NY3d 843 [2007]; People vMcCombs, 18 AD3d 888, 890 [2005]). Thus, a mistrial will not be granted based onlyon allegations that the prosecutor made fleeting improper comments that "do not reflect a flagrantand pervasive pattern of prosecutorial misconduct and [are] not egregious" (People v Delaney, 42 AD3d 820,822 [2007] [internal quotation marks, brackets and citations omitted], lv denied 9 NY3d922 [2007]; see People v Meadows,183 AD3d 1016, 1022 [2020], lv denied 35 NY3d 1047 [2020]).
During his opening statement, the prosecutor stated that Hotaling would testify that hecompared the still images from the surveillance video to the known photograph of defendant andthat he was "able to make a positive identification of [defendant] as the individual who pushedthe cart" containing the alleged stolen items. Defendant objected to "positive identification,"which objection County Court sustained, and the prosecutor immediately corrected himself bystating that Hotaling will "tell you if he recognized anyone in those photos." The prosecutor thenstated that Guadagnino would testify as to "what he did to identify the individual who was in thestore and how he identified that individual as [defendant]." The prosecutor's comment withrespect to Hotaling, to the extent that it was improper at all, was fleeting and immediatelycorrected upon defendant's sustained objection, thus falling far short of the flagrant, pervasive oregregious misconduct that compels a mistrial (see People v Wright, 88 AD3d 1154, 1158 [2011], lvdenied 18 NY3d 863 [2011]; People v Delaney, 42 AD3d [*6]at 822). Further, the prosecutor's comment about Guadagnino'splanned testimony was not improper and was merely a statement of the facts to which he wouldlater testify, namely, that he independently identified defendant (see People v Hinojoso-Soto, 161 AD3d1541, 1546 [2018], lv denied 32 NY3d 938 [2018]; People v Castro, 281AD2d 935, 936 [2001], lv denied 96 NY2d 860 [2001]). Based on the foregoing, CountyCourt appropriately denied defendant's application for a mistrial on the basis of prosecutorialmisconduct.
Defendant also alleges that County Court's response to the discovery of two jurors and onealternate juror taking notes without permission was inadequate and prejudicial to him, and,therefore, the court should have granted his other application for a mistrial. To that end, it iswithin the court's discretion to determine that a juror's behavior is disqualifying and require thatjuror's dismissal (see CPL 270.35 [1]; People v Herring, 19 NY3d 1094, 1095-1096 [2012]; cf. People v Rogers, 157 AD3d1001, 1009-1010 [2018], lv denied 30 NY3d 1119 [2018]).
Neither defendant nor the People requested that jurors be allowed to take notes, and CountyCourt did not permit notetaking. Nevertheless, during Hotaling's direct examination, defendantand the court noticed two jurors and one alternate juror apparently taking notes. Defendantmoved for a mistrial, arguing that he had been deprived of a fair trial due to the jurors takingnotes without the proper instructions and because he could not be assured that those jurors werepaying adequate attention to the trial. Under questioning by the court, the People and defendant,juror Nos. 8 and 9 separately stated that they took notes on pads that they brought into thecourtroom, did not miss any of the testimony due to their notetaking, kept their pads with themduring recesses and did not share the notes with anyone else. Juror No. 8 stated that she tooknotes only during testimony, but juror No. 9 stated that he began taking notes during openingstatements. Juror No. 14—who was alternate juror No. 2 —stated that he brought anotepad into the courtroom but did not take any notes. Rejecting defendant's renewed applicationfor a mistrial based on juror No. 9's impermissible notetaking during opening statements, thecourt instead collected and destroyed the notes taken by juror Nos. 8 and 9, discharged juror No.9 only and replaced him with alternate juror No. 1 and instructed the jury that notetaking wasprohibited given the trial's expected short duration.
Here, defendant failed to demonstrate that the jurors' unsanctioned notetaking was prejudicialand denied him a fair trial (see CPL 280.10 [1]; People v Ortiz, 54 NY2d at 292;People v Burden, 108 AD3d859, 860-861 [2013], lv denied 22 NY3d 1197 [2014]). County Court madeappropriate inquiries of the relevant jurors, and, with respect to juror No. 8 and alternate jurorNo. 2, who were not discharged, the court was entitled to credit [*7]their assurances that they were not distracted from the trial (seePeople v Herring, 19 NY3d at 1095-1096; cf. People v Brown, 136 AD2d 1, 14[1988], lv denied 72 NY2d 857 [1988], cert denied 488 US 897 [1988]).Moreover, in confiscating the jurors' notes and explicitly prohibiting further notetaking, the courtlargely mitigated the potential perils of juror notetaking, for example, overreliance on notes orundue deference to "the juror with the best notes" (People v Hues, 92 NY2d 413, 418[1998]).
Defendant contends that he was deprived of his right to the effective assistance of counselbecause trial counsel allegedly failed to inform County Court that he suffers from a traumaticbrain injury and failed to request accommodations to allow him to follow and actively participatein the trial. "A claimed violation of the constitutional right to the effective assistance of counselwill not survive judicial scrutiny so long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation" (People v Dickinson, 182 AD3d 783, 789 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 1065 [2020]; see People v Honghirun, 29 NY3d284, 289 [2017]).
Initially, defendant's contention that he was unable to fully understand and participate in thetrial because of counsel's alleged failure is predominately based on facts outside of the record,rendering his ineffective assistance of counsel claim better suited for development via a CPLarticle 440 motion (see People vDrayton, 189 AD3d 1888, 1892 [2020], lv denied 36 NY3d 1119 [2021]; People v Griffin, 134 AD3d 1228,1230 [2015], lv denied 27 NY3d 1132 [2016]). To the extent that his claim is based onthe record, it is meritless as the record shows that trial counsel advocated for accommodations fordefendant based on the effects of his traumatic brain injury, and defendant points to no particularinstance where he required an accommodation and counsel failed to ask for one (compare People v Sposito, 140 AD3d1308, 1312-1313 [2016], affd 30 NY3d 1110 [2018]). The record also indicates thattrial counsel capably advocated for defendant, filed appropriate pretrial motions, lodged severalobjections and vigorously cross-examined witnesses, including a thorough cross-examination ofthe brother. Accordingly, insofar as the record reveals, defendant received the meaningfulrepresentation to which he is constitutionally entitled (see People v Olson, 162 AD3d 1249, 1251 [2018], lvdenied 32 NY3d 1067 [2018]; People v Crippen, 156 AD3d 946, 952-953 [2017]).
Defendant contends that County Court's imposition of the maximum sentence was harsh andexcessive and impermissibly penalized him for exercising his trial right. Initially, we finddefendant's allegation that his sentence was retaliatory to be without merit. In support of thisclaim, defendant cites only to the [*8]drug court option that herejected prior to trial and the comparatively more lenient sanction imposed on the brother, neitherof which "constitute proof that he was penalized for exercising his right to trial" (People v Hahn, 159 AD3d 1062,1067 [2018], lv denied 31 NY3d 1117 [2018]; see People v Baber, 182 AD3d 794, 803 [2020], lv denied35 NY3d 1064 [2020]; People vHagaman, 139 AD3d 1183, 1186 [2016], lv denied 28 NY3d 930 [2016]).Notably, as part of the plea agreement, the brother pleaded guilty to the lesser charge of petitlarceny. Defendant, however, opted not to accept a plea agreement. In reviewing the sentencingparameters for the charges for which defendant was convicted after trial, it is evident that CountyCourt did not have significant discretion. To that end, as a second felony offender, the sentencingrange for defendant's convictions for grand larceny in the fourth degree and criminal possessionof stolen property in the fourth degree is a mandatory indeterminate sentence of imprisonment,the least of which is a sentence of 1
Garry, P.J., Lynch and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:After an unsuccessful objectionfrom defendant on hearsay grounds, this statement was offered for its effect on Guadagnino andnot for its truth.
Footnote 2:As defendant's convictions arebased on legally sufficient evidence, defendant is precluded from challenging the sufficiency ofthe evidence before the grand jury (see CPL 210.30 [6]).
Footnote 3:To the extent that defendantargues that County Court erred in directing the brother to answer despite asserting the privilegeagainst self-incrimination, defendant failed to object at the time of trial, and, thus, this argumentis unpreserved (see generally People vSmith, 193 AD3d 1260, 1269 [2021], lv denied 37 NY3d 968 [2021]).