Opinion
666 KA 22-00760
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Tyquan GRAHAM, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant was convicted following a jury trial of murder in the second degree ( Penal Law § 125.25 [1] ) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) and, in appeal No. 2, he was convicted following the same jury trial of murder in the second degree ( § 125.25 [1] ). Those charges arose from three separate shooting incidents that occurred on July 26, 2018, July 27, 2018, and August 16, 2018, each of which involved defendant being driven to the scene of the shooting in the same vehicle by the same person.
Contrary to defendant's contention in both appeals, defendant implicitly waived his rights under ( People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ) during jury selection "when, after hearing [County Court prior to jury selection] say that he was ‘welcome to attend’ the bench conferences, he chose not to do so" ( People v. Flinn , 22 N.Y.3d 599, 601, 984 N.Y.S.2d 283, 7 N.E.3d 496 [2014], rearg denied 23 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147 [2014] ; see People v. Hymes , 174 A.D.3d 1295, 1296, 106 N.Y.S.3d 439 [4th Dept. 2019], affd 34 N.Y.3d 1178, 122 N.Y.S.3d 587, 145 N.E.3d 224 [2020] ). In addition, it was not improper for the court to further advise defendant that, should he choose to attend bench conferences, he would be accompanied by court officers. "Trial courts must retain appropriate discretion to control their courtrooms and trial proceedings generally," including "decisions pertaining to courtroom security" ( People v. Gamble , 18 N.Y.3d 386, 396-397, 941 N.Y.S.2d 1, 964 N.E.2d 372 [2012], rearg denied 19 N.Y.3d 833, 945 N.Y.S.2d 643, 968 N.E.2d 999 [2012] [internal quotation marks omitted], quoting People v. Vargas , 88 N.Y.2d 363, 377, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ), and the court here gave a curative instruction at defendant's request, advising the jury not to draw any inferences based on defendant's custodial status, which was sufficient to minimize any potential prejudice to defendant (see People v. Harvey , 100 A.D.3d 1451, 1451, 953 N.Y.S.2d 439 [4th Dept. 2012], lv denied 21 N.Y.3d 943, 968 N.Y.S.2d 5, 990 N.E.2d 139 [2013] ; see also People v. Diaz , 163 A.D.3d 110, 119, 78 N.Y.S.3d 792 [3d Dept. 2018], lv denied 32 N.Y.3d 1110, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018] ).
Contrary to defendant's further contention in both appeals, the court did not abuse its discretion in refusing to sever the charges relating to the July 26, 2018, and July 27, 2018, shootings from the charges relating to the August 16, 2018, shooting. The counts were properly joined pursuant to CPL 200.20 (2) (b), and the court therefore "lacked statutory authority to grant defendant's [severance] motion" ( People v. McKay , 197 A.D.3d 992, 993, 153 N.Y.S.3d 347 [4th Dept. 2021], lv denied 37 N.Y.3d 1060, 154 N.Y.S.3d 639, 176 N.E.3d 675 [2021] [internal quotation marks omitted]).
Defendant also contends in both appeals that the verdict is against the weight of the evidence because, inter alia, the testimony of his accomplice was incredible as a matter of law. We reject that contention. The People "produced corroborative evidence sufficient to connect defendant to the commission of the offense[s]" ( People v. Reome , 15 N.Y.3d 188, 195, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ), including an additional eyewitness in the first incident and identification testimony of a separate witness from surveillance video in the second incident. 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] ), and according great deference to the factfinder's resolution of credibility issues (see People v. Ptak , 37 A.D.3d 1081, 1082, 828 N.Y.S.2d 825 [4th Dept. 2007], lv denied 8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242 [2007] ), we conclude that 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] ).
Additionally, contrary to defendant's contention in both appeals, we conclude that the sentences are not unduly harsh or severe.
We have reviewed defendant's remaining contentions in both appeals and conclude that they do not warrant modification or reversal of the judgments. We note, however, with respect to appeal No. 1, that the certificate of conviction and the uniform sentence and commitment form contain several errors regarding the criminal possession of a weapon in the second degree counts in the consolidated indictment of which defendant was found guilty. Those documents must therefore be amended to reflect that, under count 3 of the consolidated indictment, defendant was convicted of that offense under Penal Law § 265.03 (1) (b) and that, under counts 2, 4, and 9 of the consolidated indictment, defendant was convicted of that offense under Penal Law § 265.03 (3). In addition, those documents must be further amended to reflect that the sentence of incarceration imposed on the conviction of count 3 of the consolidated indictment is to be served concurrently with the remaining sentences, and that the remaining sentences of incarceration are to be served consecutively to each other.