Opinion
162 KA 19–00074
03-20-2020
The PEOPLE of the State of New York, Respondent, v. Sammy L. BROWN, Defendant–Appellant.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [3] ), defendant contends that County Court erred in refusing to suppress statements that he made to police investigators because those statements were made after he invoked his right to counsel and he did not thereafter validly waive that right. Specifically, defendant contends that the court was required to suppress several statements that he made to police investigators on July 13, 2017, because he invoked his right to counsel during an interview on July 12. It is undisputed that defendant requested an attorney during the conversation on July 12. Defendant, however, contends that he was placed in custody on July 12 and that the events of July 12–13 comprised a single, continuous block of custodial interrogation by the investigators, and therefore he could not knowingly, voluntarily, and intelligently waive his right to counsel without an attorney present. We conclude that the court properly declined to suppress the statements at issue.
We reject defendant's initial contention that suppression was required because he requested counsel while in custody on July 12. Although defendant is correct that, once an uncharged individual requests counsel while in police custody, his or her constitutional right to counsel cannot thereafter be waived without counsel present (see People v. Ramos, 99 N.Y.2d 27, 32–33, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002] ; People v. Cunningham, 49 N.Y.2d 203, 208–210, 424 N.Y.S.2d 421, 400 N.E.2d 360 [1980] ), the court determined that defendant was not in custody on July 12 (see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). Giving due deference to the court's credibility determinations (see People v. Clark, 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ), we conclude that the evidence at the Huntley hearing establishes that defendant was not in custody when he requested counsel (see generally People v. Bell–Scott, 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; People v. Strong, 27 A.D.3d 1010, 1012, 811 N.Y.S.2d 495 [3d Dept. 2006], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ).
We reject defendant's further contention that the court erred in concluding that he withdrew his request for counsel before speaking with the police investigators on July 13. The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw that assertion without an attorney present and speak to law enforcement agents (see People v. Davis, 75 N.Y.2d 517, 522–523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 [1990] ). A hearing court may infer that a defendant has withdrawn a request for counsel when the defendant's conduct unambiguously establishes such a withdrawal, which requires consideration of all relevant factors, including "whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance earlier has initiated the further communication or conversation with the police ..., and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney" ( id. at 523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 ). Here, defendant was repeatedly advised of his rights, including twice immediately before he resumed speaking with the police. Moreover, after an overnight break in questioning, defendant initiated the conversation with the police to inquire about taking a polygraph examination, and he provided his own transportation to the investigators' office. Consequently, we conclude that the court properly determined that defendant withdrew his assertion of his right to counsel (see id. ; People v. White, 27 A.D.3d 884, 886, 811 N.Y.S.2d 473 [3d Dept. 2006], lv denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006] ; cf. People v. Lewis, 153 A.D.3d 1615, 1616–1617, 62 N.Y.S.3d 661 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). We reject defendant's contention that a different result is required because he did not cause the break in the interrogation. The relevant consideration is not which party caused the break in the questioning, rather it is whether there was "a reasonable opportunity during the break for the suspect to contact an attorney" ( Davis, 75 N.Y.2d at 523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 ), and in this case defendant had such an opportunity during the overnight break in questioning.
Defendant failed to preserve for our review his contention that the court erred in permitting a prosecution witness to testify that the victim was shot by a left-handed shooter and that defendant was left-handed (see generally People v. Houk, 225 A.D.2d 1085, 1085, 639 N.Y.S.2d 197 [4th Dept. 1996], lv denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 [1997] ). He also failed to preserve his contention concerning an alleged violation of his right of confrontation (see People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg. denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant did not request a Dunaway hearing and thus failed to preserve his contention that the court erred in failing to conduct one (see People v. Mitchell, 303 A.D.2d 422, 423, 755 N.Y.S.2d 867 [2d Dept. 2003], lv denied 100 N.Y.2d 564, 763 N.Y.S.2d 821, 795 N.E.2d 47 [2003], reconsideration denied 100 N.Y.2d 597, 766 N.Y.S.2d 172, 798 N.E.2d 356 [2003] ). Similarly, defendant did not request a Darden hearing or challenge the identity of the confidential informant (see People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974] ), and thus he also failed to preserve his contention that the court erred in failing to conduct such a hearing (see CPL 470.05[2] ; People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv. denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). In any event, defendant's contentions that the court erred in failing to conduct those hearings lack merit. The evidence at the suppression hearing establishes that no Dunaway hearing was required because defendant's "statement on its face shows probable cause for defendant's arrest, and defendant failed to controvert it" by submitting motion papers addressing the issue ( People v. Lopez, 5 N.Y.3d 753, 754, 801 N.Y.S.2d 245, 834 N.E.2d 1255 [2005] ; see People v. Bakerx, 114 A.D.3d 1244, 1246, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ). Similarly, no Darden hearing was necessary because the evidence from the suppression hearing establishes that the police had probable cause to arrest defendant that was independent of any information gleaned from the confidential informant (see generally People v. Farrow, 98 N.Y.2d 629, 630–631, 745 N.Y.S.2d 752, 772 N.E.2d 1110 [2002] ).
Defendant further contends that he was denied effective assistance of counsel due to his attorney's failure to object to the testimony regarding the left-handed shooter or to request Dunaway and Darden hearings. We reject that contention. It is well settled that a defendant is not denied effective assistance of counsel due to his counsel's failure to "make a motion or argument that has little or no chance of success" ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ), and it is equally well settled that the failure to move for a particular hearing does not, in and of itself, constitute ineffective assistance of counsel, particularly "where, as here, such endeavor was potentially futile" ( People v. Jackson, 48 A.D.3d 891, 893, 851 N.Y.S.2d 677 [3d Dept. 2008], lv denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87 [2008] ; see People v. Smith, 128 A.D.3d 1434, 1434–1435, 8 N.Y.S.3d 777 [4th Dept. 2015], lv denied 26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ). Furthermore, defendant "failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's alleged shortcomings" ( People v. Dickeson, 84 A.D.3d 1743, 1743, 922 N.Y.S.2d 833 [4th Dept. 2011], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012] ; see People v. Markwick, 178 A.D.3d 1439, 1440, 112 N.Y.S.3d 664 [4th Dept. 2019] ; People v. Streeter, 166 A.D.3d 1509, 1511, 87 N.Y.S.3d 763 [4th Dept. 2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019] ; People v. Murphy, 43 A.D.3d 1334, 1334, 842 N.Y.S.2d 623 [4th Dept. 2007], lv denied 9 N.Y.3d 1037, 852 N.Y.S.2d 22, 881 N.E.2d 1209 [2008] ).
We note that "[d]efendant's challenge to the court's denial of a missing witness charge is unpreserved because defense counsel never requested the charge" ( People v. Roseboro, 151 A.D.3d 526, 526, 58 N.Y.S.3d 12 [1st Dept. 2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 585, 89 N.E.3d 1265 [2017] ). In any event, we conclude that the "court did not err in refusing to give a missing witness charge with respect to a witness whose testimony would have constituted hearsay" ( People v. Cephas, 107 A.D.3d 821, 821, 966 N.Y.S.2d 684 [2d Dept. 2013], lv denied 21 N.Y.3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013]; see People v. Andolina, 171 A.D.3d 1201, 1202, 96 N.Y.S.3d 883 [2d Dept. 2019], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 660, 130 N.E.3d 1270 [2019] ).
Defendant also failed to preserve for our review his contention that the court erred in failing to instruct the jury that a prosecution witness was an accomplice as a matter of law and that his testimony therefore required corroboration (see People v. Taylor, 57 A.D.3d 1518, 1518, 869 N.Y.S.2d 710 [4th Dept. 2008], lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ; People v. Smith–Merced, 50 A.D.3d 259, 259, 854 N.Y.S.2d 386 [1st Dept. 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ). In any event, even assuming, arguendo, that the prosecution witness was an accomplice as a matter of law, we conclude that "his testimony was sufficiently corroborated by, inter alia, defendant's admissions" ( People v. Elder, 108 A.D.3d 1117, 1117, 968 N.Y.S.2d 307 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; see People v. Reed, 115 A.D.3d 1334, 1336, 982 N.Y.S.2d 670 [4th Dept. 2014], lv denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014] ; People v. Fortino, 61 A.D.3d 1410, 1411, 876 N.Y.S.2d 811 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). Defendant's related contention that he was denied effective assistance of counsel due to counsel's failure to request such a charge lacks merit inasmuch as it is well settled that an attorney's "failure to ‘make a motion or argument that has little or no chance of success’ " does not amount to ineffective assistance ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see Elder, 108 A.D.3d at 1117, 968 N.Y.S.2d 307 ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that, contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The jury had the opportunity to assess the testimony and credibility of the accomplice, who received favorable treatment in exchange for his testimony (see People v. Pace, 305 A.D.2d 984, 985, 758 N.Y.S.2d 568 [4th Dept. 2003], lv denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488 [2003] ), as well as the other witnesses, and the jury's credibility determination is entitled to great deference (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that "the jury failed to give the evidence the weight it should be accorded" ( People v. Jackson, 162 A.D.3d 1567, 1567, 78 N.Y.S.3d 574 [4th Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We have considered defendant's remaining contentions and conclude that they do not require reversal or modification of the judgment.