Opinion
642 KA 16-01586
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Marlon R. SCOTT, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
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 assault in the second degree ( Penal Law § 120.05 [2] ). Defendant's conviction stems from an incident in which he struck the victim with the motor vehicle he was driving, breaking both of the victim's legs.
Defendant contends that Supreme Court abused its discretion in its Sandoval ruling, pursuant to which the prosecutor was permitted to question defendant about his 2008 conviction for robbery in the first degree. We reject that contention. Initially, we reject defendant's claim that the 2008 conviction was too remote in time to be probative. The admission of evidence of "prior convictions [that are] remote in time [is a] matter[ ] of substance that may properly be considered by the trial court," and the court's exercise of discretion "should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning" ( People v. Walker , 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ; see People v. Ellis , 183 A.D.2d 534, 535, 585 N.Y.S.2d 177 [1st Dept. 1992], affd 81 N.Y.2d 854, 597 N.Y.S.2d 623, 613 N.E.2d 529 [1993] ), particularly where, as here, "the basis of the court's decision may be inferred from the parties' arguments" ( Walker , 83 N.Y.2d at 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 ). Under the circumstances of this case, "the jury could have considered [the robbery conviction] as a manifestation of defendant's willingness to place his own interests above that of the community" ( People v. Taylor , 140 A.D.3d 1738, 1739, 34 N.Y.S.3d 310 [4th Dept. 2016] ).
We also reject defendant's claim that the court's admission of the prior conviction improperly deterred him from testifying in support of his justification defense. Defendant was not "the only available source of material testimony in support of his defense" ( People v. Calderon , 146 A.D.3d 967, 972, 47 N.Y.S.3d 43 [2d Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] [emphasis added]), and the absence of his testimony did not deprive the jury of "significant material evidence" ( People v. Grant , 7 N.Y.3d 421, 424, 823 N.Y.S.2d 757, 857 N.E.2d 52 [2006] [internal quotation marks omitted]), inasmuch as defendant's girlfriend, who was a passenger in defendant's vehicle when the incident occurred, was able to provide eyewitness testimony regarding the incident.
Defendant further contends that the court abused its discretion in its Molineux ruling, pursuant to which the victim was permitted to testify that defendant had asked him multiple times—including on the day of the incident—to participate in a cell phone distribution scheme. We conclude that defendant failed to preserve that contention for our review inasmuch as defense counsel objected only to the People's failure to provide notice that it planned to elicit such testimony (see CPL 470.05 [2] ; see generally People v. Wiggins , 11 A.D.3d 981, 981, 784 N.Y.S.2d 761 [4th Dept. 2004], lv denied 3 N.Y.3d 761, 788 N.Y.S.2d 678, 821 N.E.2d 983 [2004] ). In any event, defendant's contention lacks merit. The victim's testimony did not "implicate defendant in the commission of any uncharged crime and thus it did not constitute Molineux evidence" ( People v. Coppeta , 125 A.D.3d 1304, 1304, 2 N.Y.S.3d 308 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ). Further, the victim's testimony about the cell phone scheme was relevant as necessary "background material," which "complete[d] the narrative of the episode" ( People v. Till , 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] [internal quotation marks omitted]) and allowed the jury to understand the case in context (see People v. Resek , 3 N.Y.3d 385, 389, 787 N.Y.S.2d 683, 821 N.E.2d 108 [2004] ).
Defendant similarly failed to preserve for our review his related contention that the court erred in failing to issue a limiting instruction with respect to the victim's testimony about the cell phone scheme (see People v. Williams , 107 A.D.3d 1516, 1516, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ). In any event, that contention also lacks merit (see generally People v. Carey , 244 A.D.2d 952, 953, 665 N.Y.S.2d 175 [4th Dept. 1997], lv denied 92 N.Y.2d 849, 677 N.Y.S.2d 79, 699 N.E.2d 439 [1998] ).
We reject defendant's further contention that the court erred in refusing to charge the jury on the defense of justification. Viewing the evidence in the light most favorable to defendant, as we must (see People v. Brown , 169 A.D.3d 1488, 1488-1489 [4th Dept. 2019], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 406, 152 N.E.3d 1208 [2020] ), we conclude that there is no reasonable view of the evidence from which the jury could have found that defendant's actions were justified (see generally id. ). Here, defendant was safely in his vehicle and the victim was walking away from the vehicle toward the curb when defendant drove into the victim, and there was only "equivocal evidence that [the victim] may have had a knife sometime during the dispute" that preceded the incident ( People v. Benson , 265 A.D.2d 814, 815, 697 N.Y.S.2d 222 [4th Dept. 1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000] ; cf. People v. Arzu , 7 A.D.3d 458, 459, 777 N.Y.S.2d 485 [1st Dept. 2004], lv dismissed 3 N.Y.3d 670, 784 N.Y.S.2d 8, 817 N.E.2d 826 [2004] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. Defendant contends that, although the parties stipulated that the victim sustained a physical injury within the meaning of Penal Law § 120.05 (2), defense counsel was ineffective for failing to object when the prosecutor elicited testimony from the victim describing his injuries in detail and had the victim show his scars to the jury, and for failing to object when the prosecutor referenced the victim's testimony regarding his injuries on summation. Under the circumstances of this case, however, we conclude that, inasmuch as a victim's testimony regarding his or her injuries may be relevant to establish the defendant's intent (see generally People v. Jaber , 172 A.D.3d 1227, 1229, 101 N.Y.S.3d 371, [2d Dept. 2019], lv denied 34 N.Y.3d 933, 109 N.Y.S.3d 703, 133 N.E.3d 403 [2019] ), defendant failed " ‘to demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see generally People v. Sampson , 184 A.D.3d 1123, 1125, 125 N.Y.S.3d 808 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 290, 155 N.E.3d 783 [2020] ; People v. Williams , 163 A.D.3d 1422, 1423, 80 N.Y.S.3d 610 [4th Dept. 2018] ).