Opinion
686 KA 20-01119
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Warren MEREDITH, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (LEAH N. FARWELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, 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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ), assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [3]).
To the extent that defendant preserved for our review his contention that the conviction is not supported by legally sufficient evidence (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), that contention lacks merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Further, 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 ).
We reject defendant's contention that County Court erred in summarily denying his motion to set aside the verdict pursuant to CPL 330.30. A motion to set aside a verdict based on allegedly improper juror conduct or newly discovered evidence "must contain sworn allegations, whether by the defendant or by another person or persons, of the occurrence or existence of all facts essential to support the motion. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief" ( CPL 330.40 [2] [a] ; see CPL 330.30 [2], [3] ). Here, the court properly exercised its discretion in summarily denying defendant's motion insofar as it sought to set aside the verdict based on juror misconduct inasmuch as it "was supported only by hearsay allegations contained in an [affirmation] of defense counsel" ( People v. Kerner , 299 A.D.2d 913, 913, 751 N.Y.S.2d 139 [4th Dept. 2002], lv denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741 [2003] [internal quotation marks omitted]; see People v. Barizone , 201 A.D.3d 810, 811, 160 N.Y.S.3d 93 [2d Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 456, 191 N.E.3d 408 [2022] ; cf. People v. Tokarski , 178 A.D.2d 961, 961, 578 N.Y.S.2d 751 [4th Dept. 1991] ). Similarly, the unsworn statement submitted in support of defendant's motion insofar as it sought to set aside the verdict on the ground of newly discovered evidence was insufficient to satisfy the requirements of CPL 330.40 (2) (a) (see People v. Abrams , 73 A.D.3d 1225, 1228, 900 N.Y.S.2d 489 [3d Dept. 2010], affd 17 N.Y.3d 760, 929 N.Y.S.2d 30, 952 N.E.2d 1022 [2011] ; see generally People v. Shilitano , 215 N.Y. 715, 715-716, 109 N.E. 500 [1915] ; People v. Lopez , 104 A.D.2d 904, 905, 480 N.Y.S.2d 398 [2d Dept. 1984] ).
We reject defendant's further contention that the court erred in excluding him from the hearing held pursuant to ( People v. Hinton , 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 [1972], cert denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 [1973] ) to determine whether the courtroom should be closed during the testimony of a witness. The Hinton hearing "did not constitute a material stage of the trial during which defendant's presence was required" ( People v. Floyd , 45 A.D.3d 1457, 1458, 846 N.Y.S.2d 537 [4th Dept. 2007], lv denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ; see also People v. Wood , 259 A.D.2d 777, 779, 686 N.Y.S.2d 879 [3d Dept. 1999], lv denied 93 N.Y.2d 1007, 695 N.Y.S.2d 753, 717 N.E.2d 1090 [1999] ). The evidence adduced at the hearing "did not bear on defendant's guilt or innocence but rather [focused] on the safety of the witness[ ] and was unrelated to factual issues presented at trial" ( People v. Frost , 100 N.Y.2d 129, 135, 760 N.Y.S.2d 753, 790 N.E.2d 1182 [2003] ). Further, defendant had a full opportunity to cross-examine the witness at trial, and as such, his confrontation rights were not violated by his exclusion from the Hinton hearing (see id. ).
Defendant's contentions regarding prosecutorial misconduct are not preserved for our review (see People v. Maull , 167 A.D.3d 1465, 1467-1468, 90 N.Y.S.3d 412 [4th Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 185, 123 N.E.3d 844 [2019] ; People v. Machado , 144 A.D.3d 1633, 1635, 42 N.Y.S.3d 519 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We reject defendant's contention that the sentence is unduly harsh and severe.