Opinion
02-23-2017
The PEOPLE of the State of New York, Respondent, v. Steven JAMES, Appellant.
Linda B. Johnson, East Greenbush, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Linda B. Johnson, East Greenbush, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, CLARK and AARONS, JJ.
EGAN JR., J.Appeal from a judgment of the Supreme Court (Breslin, J.), rendered November 17, 2014 in Albany County, upon a verdict convicting defendant of the crimes of robbery in the first degree (two counts) and criminal possession of a weapon in the second degree.
Defendant was indicted and charged in a four-count indictment with robbery in the first degree (two counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. The charges stemmed from an incident that occurred during the early morning hours of April 14, 2013 on Madison Avenue in the City of Albany. The victim, who had just left a function at a local establishment, was entering his vehicle when an armed assailant put a gun to his head and said, "[G]ive me all your stuff." When the victim hesitated, the assailant "cocked the gun back and said, ‘I'm serious. I'm not playing,’ " whereupon the victim handed over his jewelry and cash. The assailant then reached into the vehicle and grabbed the victim's cell phone from his coat pocket. As he was fleeing the scene, the assailant fired a shot in the direction of the victim's vehicle, striking the rear driver's side door and shattering the window.
Although the victim did not identify defendant as his assailant (either prior to or at trial), a subsequent forensic analysis of DNA contained in blood droplets found on the driver's side door handle of the victim's car was deemed to match defendant's DNA. Following a trial, a jury convicted defendant of robbery in the first degree (two counts) and criminal possession of a weapon in the second degree, and defendant thereafter was sentenced—as a second violent felony offender—to an aggregate prison term of 23 years followed by five years of postrelease supervision. Defendant now appeals.
The remaining count of the indictment was dismissed prior to trial.
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Preliminarily, we reject defendant's contention that the People's alleged failure to comply with the provisions of CPL 160.10 and 210.10 deprived Supreme Court of personal and/or subject matter jurisdiction. Although the record indeed is silent as to the procedural mechanism that was employed in order to produce defendant for arraignment (see CPL 210.10 ), the fact remains that defendant was arraigned in Supreme Court, at which time defendant was assigned counsel, the previously sealed indictment was opened and a plea of not guilty was entered upon defendant's behalf, thus securing Supreme Court's jurisdiction over both defendant and the resulting prosecution (see generally People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723 [1965], cert. denied 382 U.S. 975, 15 L.Ed.2d 466 [1966] ; People v. Golston, 13 A.D.3d 887, 889, 787 N.Y.S.2d 185 [2004], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ). Similarly, to the extent that defendant contends that the People failed to obtain his fingerprints in violation of CPL 160.10, we need note only that (1) any omission in this regard was occasioned by defendant's admitted refusal to be fingerprinted, (2) Supreme Court had a prior fingerprint report of defendant at its disposal, and (3) "nothing contained in CPL 160.10 suggests that compliance therewith is a predicate to personal or subject matter jurisdiction of [the c]ourt" (People v. Crandall, 228 A.D.2d 794, 796, 644 N.Y.S.2d 817 [1996], lv. denied 88 N.Y.2d 983, 649 N.Y.S.2d 389, 672 N.E.2d 615 [1996] ). Accordingly, defendant's jurisdictional claims must fail.
Although we reject defendant's assertion that the underlying verdict is against the weight of the evidence, we agree that a new trial is warranted due to Supreme Court's denial of defendant's request for a wholly circumstantial evidence charge. As the Court of Appeals recently reiterated, "[i]t is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence. By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given" (People v. Hardy, 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] [citations omitted] ). Direct evidence, which "proves directly a disputed fact without requiring an inference to be made" (id. at 251, 22 N.Y.S.3d 377, 43 N.E.3d 734 ), may include, among other things, eyewitness testimony attesting to a defendant's participation in the crime (see e.g. People v. Daddona, 81 N.Y.2d 990, 992–993, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 [2012], lv.
denied 18 N.Y.3d 999, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ; People v. Bradley, 72 A.D.3d 1628, 1629, 899 N.Y.S.2d 494 [2010], lv. denied 15 N.Y.3d 772, 907 N.Y.S.2d 460, 933 N.E.2d 1053 [2010] ; People v. Roldan, 211 A.D.2d 366, 367–368, 627 N.Y.S.2d 1014 [1995], affd. 88 N.Y.2d 826, 643 N.Y.S.2d 960, 666 N.E.2d 553 [1996] ) or a defendant's incriminating statements to others if such statements "constitute[ ] a relevant admission of guilt" (People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] [internal quotation marks and citation omitted]; see e.g. People v. Griffin, 28 A.D.3d 578, 579, 816 N.Y.S.2d 86 [2006], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 819, 854 N.E.2d 1283 [2006] ; People v. Rodriguez, 259 A.D.2d 713, 714, 688 N.Y.S.2d 165 [1999], lv. denied 93 N.Y.2d 928, 693 N.Y.S.2d 512, 715 N.E.2d 515 [1999] ; People v. Barnes, 162 A.D.2d 1039, 1040, 558 N.Y.S.2d 339 [1990], lv. denied 76 N.Y.2d 890, 561 N.Y.S.2d 553, 562 N.E.2d 878 [1990] ). Circumstantial evidence, on the other hand, requires the trier of fact "to make a number of logical leaps" (People v. Carter, 97 A.D.3d 492, 496, 948 N.Y.S.2d 608 [2012] ) or to draw "additional inferences" (People v. Saxton, 75 A.D.3d 755, 758, 907 N.Y.S.2d 316 [2010], lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 650, 939 N.E.2d 816 [2010] ) from the proof presented in order to connect the defendant to the charged crimes (see generally People v. Wlasuik, 136 A.D.3d 1101, 1104, 24 N.Y.S.3d 787 [2016], lv. denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016] ; People v. Callicut, 101 A.D.3d 1256, 1259–1260, 956 N.Y.S.2d 607 [2012], lvs. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013], 20 N.Y.S.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013] ).
Contrary to the People's assertion, this was not a case "where both direct and circumstantial evidence [were] employed to demonstrate ... defendant's culpability[,] thereby negating the need for the [requested] charge" (People v. Carter, 97 A.D.3d at 496, 948 N.Y.S.2d 608 [internal quotation marks and citation omitted] ). While there indeed is no question—based upon the victim's testimony and the photographic evidence contained in the record—that the charged crimes did in fact occur, the record makes clear—and the People readily concede—that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match "can provide strong evidence of a person's presence at and participation in a criminal act" (People v. Wesley, 83 N.Y.2d 417, 421, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ; accord People v. Rush, 242 A.D.2d 108, 110, 672 N.Y.S.2d 362 [1998], lvs. denied 92 N.Y.2d 860, 677 N.Y.S.2d 91, 699 N.E.2d 451 [1998], 92 N.Y.2d 905, 680 N.Y.S.2d 69, 702 N.E.2d 854 [1998] ; see generally People v. Brown, 92 A.D.3d 1216, 1217, 937 N.Y.S.2d 803 [2012], lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ), a defendant's mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator (see People v. Sanchez, 61 N.Y.2d 1022, 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228 [1984] ; People v. Jones, 105 A.D.3d 1059, 1060, 963 N.Y.S.2d 399 [2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ). Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given (see People v. Santiago, 22 N.Y.3d 990, 991–992, 980 N.Y.S.2d 889, 3 N.E.3d 1137 [2013] ; People v. Silva, 69 N.Y.2d 858, 859, 514 N.Y.S.2d 710, 507 N.E.2d 303 [1987] ; People v. Sanchez, 61 N.Y.2d at 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228 ; People v. Jones, 105 A.D.3d at 1060, 963 N.Y.S.2d 399 ; People v. Carter, 97 A.D.3d at 496, 948 N.Y.S.2d 608 ; People v. Saxton, 75 A.D.3d at 758, 907 N.Y.S.2d 316 ; People v. Lynch, 309 A.D.2d 878, 878, 766 N.Y.S.2d 60 [2003], lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004] ). As the People's proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant's request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court's failure to grant the requested charge to be harmless error (see People v. Saxton, 75 A.D.3d at 758, 907 N.Y.S.2d 316 ; People v. Lynch, 309 A.D.2d at 878, 766 N.Y.S.2d 60 ).
To be sure, Supreme Court did give a hybrid or modified circumstantial evidence charge to the jury and, therefore, this is not a case where the trial court simply outright refused to grant any circumstantial evidence charge at all. That said, we reject the People's assertion that the circumstantial evidence charge actually given by Supreme Court here was sufficient. "[W]hen the evidence is circumstantial[,] the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence" (People v. Sanchez, 61 N.Y.2d at 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228 ; accord People v. Ford, 66 N.Y.2d 428, 441, 497 N.Y.S.2d 637, 488 N.E.2d 458 [1985] ; see People v. Harris, 88 A.D.3d 83, 86, 928 N.Y.S.2d 114 [2011], revd. on other grounds 19 N.Y.3d 679, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ). Here, although Supreme Court charged the jury that "the inference of guilt should flow naturally from the facts proven and be consistent with them all" and reiterated that "the inference of guilt must flow irresistibly from the facts proven and not be the result of strained or conjectural reasons," the court's charge did not include all of the legally required language (compare People v. Wlasuik, 136 A.D.3d at 1104–1105, 24 N.Y.S.3d 787). Under these circumstances, "the jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution's entire case" (People v. Sanchez, 61 N.Y.2d at 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228 ).
In light of our remittal for a new trial, defendant's pro se claim of prosecutorial misconduct is effectively academic. That said, we note in passing that while the bulk of the prosecutor's comments relative to the blood found on the victim's vehicle and the import of the resulting DNA match to defendant constituted fair comment upon the evidence, the prosecutor exceeded the bounds of permissible commentary when, during the course of his summation, he told the jury, "[Y]ou know that the blood [on the victim's car] belongs to the robber."
ORDERED that the judgment is reversed, on the law, and matter remitted to the Supreme Court for a new trial.
GARRY, J.P., DEVINE, CLARK and AARONS, JJ., concur.