Opinion
251 KA 17–00057
07-05-2019
The PEOPLE of the State of New York, Respondent, v. Larry CROSS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. LARRY CROSS, DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
LARRY CROSS, DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ), arising from an incident in which he went to the residence of the victim and then shot the victim after he came to the front door. We affirm.
Defendant contends in his main brief that Supreme Court erred in denying his challenge for cause to a first prospective juror and further contends in his pro se supplemental brief that the court erred in denying his challenge for cause to a second prospective juror. Although defendant preserved those contentions for our review (see CPL 270.20[2] ; People v. Harris , 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ), we conclude that they lack merit.
"A prospective juror may be challenged for cause on several grounds" ( People v. Furey , 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011] ), including that the prospective juror "bears some ... relationship to [counsel for the People or for the defendant] of such nature that it is likely to preclude him [or her] from rendering an impartial verdict" ( CPL 270.20[1][c] ; see People v. Scott , 16 N.Y.3d 589, 592–593, 595, 925 N.Y.S.2d 384, 949 N.E.2d 475 [2011] ; People v. Thomas , 166 A.D.3d 1499, 1501, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019] ). " ‘[N]ot all relationships, particularly professional ones, between a prospective juror and relevant persons, including counsel for either side, require disqualification for cause as a matter of law’ " ( Thomas , 166 A.D.3d at 1501–1502, 87 N.Y.S.3d 431 ; see Furey , 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ). "Trial courts are directed to look at myriad factors surrounding the particular relationship in issue, such as the frequency, recency or currency of the contact, whether it was direct contact, and the nature of the relationship as personal and/or professional ... or merely a nodding acquaintance" ( Thomas , 166 A.D.3d at 1502, 87 N.Y.S.3d 431 [internal quotation marks omitted]; see Furey , 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ; People v. Provenzano , 50 N.Y.2d 420, 425, 429 N.Y.S.2d 562, 407 N.E.2d 408 [1980] ; People v. Greenfield , 112 A.D.3d 1226, 1228–1229, 977 N.Y.S.2d 486 [3d Dept. 2013], lv denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ).
Here, the first prospective juror's mere status as an investigator with a law enforcement agency, without more, did not require her disqualification (see People v. Montford , 145 A.D.3d 1344, 1348, 45 N.Y.S.3d 598 [3d Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ; Greenfield , 112 A.D.3d at 1229, 977 N.Y.S.2d 486 ; People v. Pickren , 284 A.D.2d 727, 727–728, 728 N.Y.S.2d 792 [3d Dept. 2001], lv denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ). Moreover, the first prospective juror had no professional or personal relationship, nor direct contact, with either of the trial prosecutors; instead, she had merely "heard of" one of the trial prosecutors from her former coworkers (see Pickren , 284 A.D.2d at 727–728, 728 N.Y.S.2d 792 ; cf. People v. Branch , 46 N.Y.2d 645, 650–651, 415 N.Y.S.2d 985, 389 N.E.2d 467 [1979] ; see also People v. DeFreitas , 116 A.D.3d 1078, 1080, 984 N.Y.S.2d 423 [3d Dept. 2014], lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ). While the first prospective juror may also have seen defendant and a defense attorney in a courtroom on one prior occasion as part of her employment on a recent unrelated case, any such limited past contact and familiarity with appearance would show no more than a "nodding acquaintance," which does not constitute implied bias requiring her automatic exclusion from jury service ( Provenzano , 50 N.Y.2d at 425, 429 N.Y.S.2d 562, 407 N.E.2d 408 ; see generally Furey , 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ). In addition, although the first prospective juror had worked with other members of the District Attorney's Office in prosecuting the prior case and acknowledged her close working relationship with that office, the record establishes that the relationship was solely professional and that the single matter upon which she had worked with that office was unrelated to defendant's case (see Greenfield , 112 A.D.3d at 1228–1229, 977 N.Y.S.2d 486 ; People v. Molano , 70 A.D.3d 1172, 1174, 894 N.Y.S.2d 589 [3d Dept. 2010], lv denied 15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ; cf. Montford , 145 A.D.3d at 1347–1348, 45 N.Y.S.3d 598 ). There is nothing in the record establishing that the first prospective juror was engaged in "current, ongoing investigative work on a pending matter in cooperation with and under the direction of the prosecuting agency" ( Greenfield , 112 A.D.3d at 1229, 977 N.Y.S.2d 486 ), and defendant's assertion that the first prospective juror would be expected to engage in such work in the future is based on mere speculation (see People v. Kennedy , 78 A.D.3d 1477, 1478, 910 N.Y.S.2d 602 [4th Dept. 2010], lv denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011] ).
The record also shows "little more than a nodding acquaintance" between the second prospective juror and one of the trial prosecutors ( Provenzano , 50 N.Y.2d at 425, 429 N.Y.S.2d 562, 407 N.E.2d 408 ; see Pickren , 284 A.D.2d at 728, 728 N.Y.S.2d 792 ). Moreover, "[n]either [the second prospective juror's] status as a law enforcement officer ... nor his former, solely professional relationship with the District Attorney's [O]ffice, which was largely remote in time ..., required his disqualification for cause" ( Greenfield , 112 A.D.3d at 1229, 977 N.Y.S.2d 486 ; see CPL 270.20[1][c] ; Scott , 16 N.Y.3d at 595, 925 N.Y.S.2d 384, 949 N.E.2d 475 ). With respect to actual bias, "[i]t is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial" ( People v. Campanella , 100 A.D.3d 1420, 1421, 953 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] [internal quotation marks omitted] ). Here, the second prospective juror "never expressed any doubt concerning his ability to be fair and impartial" ( id. ; see People v. Odum , 67 A.D.3d 1465, 1465, 890 N.Y.S.2d 241 [4th Dept. 2009], lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010], reconsideration denied 15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227 [2010], cert denied 562 U.S. 931, 131 S.Ct. 326, 178 L.Ed.2d 212 [2010] ). In any event, even assuming, arguendo, that the initial statements of the second prospective juror raised a serious doubt regarding his ability to be impartial, we conclude that he ultimately stated unequivocally that he could be fair (see Campanella , 100 A.D.3d at 1422, 953 N.Y.S.2d 786 ).
Defendant further contends in his main brief that the evidence is legally insufficient to support the conviction and that the verdict is against the weight of the evidence, primarily based on his challenge to the credibility of the victim regarding the identity of the shooter. We reject those contentions.
Even assuming, arguendo, that defendant's contention regarding the legal sufficiency of the evidence is preserved for our review (cf. People v. Hines , 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), we conclude that his contention lacks merit. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), we conclude that the evidence is legally sufficient to support the conviction (see People v. Butler , 140 A.D.3d 1610, 1610–1611, 33 N.Y.S.3d 602 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; People v. Kindred , 60 A.D.3d 1240, 1241, 876 N.Y.S.2d 177 [3d Dept. 2009], lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Furthermore, 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 the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "Although defendant [contends] that the testimony of the [victim and the other] eyewitness[ ] who identified him as the shooter should be discredited for various reasons—including [the traumatic nature of the shooting, the delay in reporting defendant's name during the 911 call despite the testimony suggesting that the other eyewitness had done so immediately, and purported overstatements by the victim of his familiarity with defendant and ability to identify him]—the jury was able to consider each of these issues now raised and chose to credit the identification of defendant as the shooter" ( People v. Lanier , 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [3d Dept. 2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ). The issues of credibility and identification, including the weight to be given to any inconsistencies in the testimony of the victim and the other eyewitness, "were properly considered by the jury and there is no basis for disturbing its determinations" ( People v. Kelley , 46 A.D.3d 1329, 1330, 847 N.Y.S.2d 813 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 46, 886 N.E.2d 811 [2008] ; see Lanier , 130 A.D.3d at 1311, 15 N.Y.S.3d 241 ; People v. Concepcion , 128 A.D.3d 612, 612, 11 N.Y.S.3d 9 [1st Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ; People v. Moye , 11 A.D.3d 1027, 1028, 782 N.Y.S.2d 195 [4th Dept. 2004], lv denied 3 N.Y.3d 759, 788 N.Y.S.2d 675, 821 N.E.2d 980 [2004], reconsideration denied 4 N.Y.3d 746, 790 N.Y.S.2d 659, 824 N.E.2d 60 [2004] ).
Finally, contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).