Opinion
2011–10513 Ind.No. 1879/10
10-23-2019
The PEOPLE, etc., Respondent, v. Edward WILLIAMS, Appellant.
James L. Iannone, Williston Park, NY, for appellant, and appellant pro se. Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Andrea M. DiGregorio of counsel), for respondent.
James L. Iannone, Williston Park, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Andrea M. DiGregorio of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (John L. Kase, J.), rendered November 1, 2011, convicting him of murder in the first degree (three counts), attempted murder in the first degree (three counts), robbery in the first degree (five counts), robbery in the second degree (two counts), burglary in the first degree (two counts), kidnapping in the first degree, kidnapping in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted, after a jury trial, of three counts of murder in the first degree and related charges arising out of a kidnapping at gunpoint of two victims by the defendant and his accomplice. During the commission of the kidnapping, the defendant shot at both victims as they attempted to flee, and one of the victims subsequently died from his gunshot wounds.
Contrary to the defendant's contention, the Supreme Court imposed an appropriate sanction for the People's failure to disclose prior to trial certain evidence pertaining to latent fingerprints found at the crime scene which the People contend match the fingerprints of the defendant's accomplice. Where a party fails to timely comply with a discovery demand, "the trial court has discretion to impose a broad range of sanctions, including preclusion" ( People v. O'Brien , 140 A.D.3d 1325, 1327, 32 N.Y.S.3d 741 ; see People v. Jenkins , 98 N.Y.2d 280, 284, 746 N.Y.S.2d 651, 774 N.E.2d 716 ). Here, the court precluded the People from using the fingerprint evidence in their case-in-chief and only allowed the People to introduce it on their rebuttal case after the defendant testified to his non-participation in the crime. The fingerprint evidence did not directly contradict the defense theory of nonparticipation in the crime (see People v. Jenkins , 98 N.Y.2d at 284–285, 746 N.Y.S.2d 651, 774 N.E.2d 716 ). Further, the court afforded the defense time to prepare for the testimony of the People's witness as to the fingerprint evidence and granted the defendant's application to retain a fingerprint expert. Under these circumstances, the court's determination to preclude the People from using the evidence in their case-in-chief but to allow them to introduce the fingerprint evidence on their rebuttal case was an appropriate remedy (see People v. Jenkins , 98 N.Y.2d at 284–285, 746 N.Y.S.2d 651, 774 N.E.2d 716 ; People v. Pham , 118 A.D.3d 1159, 1161–1162, 987 N.Y.S.2d 687 ).
Contrary to the defendant's further contention, most of the prosecutor's summation remarks that are challenged by the defense were proper, as within the broad bounds of permissible rhetorical comment or fair comment on the evidence (see People v. Galloway , 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal , 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ). To the extent that some of the prosecutor's remarks were not based on the trial evidence, those remarks were sufficiently addressed by the curative instructions issued by the Supreme Court (see People v. Marks , 128 A.D.3d 852, 853, 9 N.Y.S.3d 120 ; People v. Philips , 120 A.D.3d 1266, 1268, 992 N.Y.S.2d 104 ), and were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Rhodes , 115 A.D.3d 681, 683, 981 N.Y.S.2d 548 ; People v. Ward , 106 A.D.3d 842, 843, 964 N.Y.S.2d 642 ).
The defendant's contention, raised for the first time in his pro se supplemental brief, that the police lacked grounds to stop a vehicle that he was driving several weeks prior to his arrest is unpreserved for appellate review (see CPL 470.05[2] ; People v. Johnson , 165 A.D.3d 1168, 1170, 85 N.Y.S.3d 585 ; People v. Mullings , 88 A.D.3d 745, 745, 930 N.Y.S.2d 279 ), and we decline to review it in the exercise of our interest of justice jurisdiction.
The defendant's contention, raised in his pro se supplemental brief, that the People violated their disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 by failing to turn over a certain report until after the verdict was rendered, is based on matter dehors the record and not reviewable on direct appeal (see People v. Krivoi , 81 A.D.3d 978, 979, 917 N.Y.S.2d 273 ; People v. Williams , 34 A.D.3d 856, 857, 824 N.Y.S.2d 681 ). Moreover, this contention is unpreserved for appellate review, as the defendant never sought relief in connection with the alleged violation (see People v. Francois , 137 A.D.3d 935, 936, 26 N.Y.S.3d 479 ; see also People v. Morrow , 143 A.D.3d 919, 920, 39 N.Y.S.3d 232 ).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell , 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans , 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman , 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
DILLON, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.