Opinion
2012-235 N CR
02-17-2015
The People of the State of New York, Respondent, v. Daniel Azizian, Appellant.
PRESENT: : , TOLBERT and GARGUILO, JJ.
Appeal from judgments of the District Court of Nassau County, First District (Rhonda E. Fischer, J.), rendered January 12, 2012. The judgments convicted defendant, upon jury verdicts, of reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, reckless driving, three charges of speeding, two charges of failing to signal when changing lanes, two charges of passing a red light, unsafe passing on the left, and driving across hazard markings.
ORDERED that the judgment convicting defendant of unsafe passing on the left is reversed, on the facts, the accusatory instrument charging that offense is dismissed, and the fine, if paid, is remitted; and it is further,
ORDERED that the remaining judgments of conviction are affirmed.
On November 18, 2010, the People charged defendant, in separate simplified traffic informations, with reckless driving (Vehicle and Traffic Law § 1212), three charges of speeding (Vehicle and Traffic Law § 1180 [b] [one charge], Vehicle and Traffic Law § 1180 [d] [two charges]), two charges of failing to signal when changing lanes (Vehicle and Traffic Law § 1163 [d]), two charges of passing a red light (Vehicle and Traffic Law § 1111 [d] [1]), unsafe passing on the left (Vehicle and Traffic Law § 1124), and driving across hazard markings (Vehicle and Traffic Law § 1128 [d]).
On May 16, 2011, the People charged defendant, in separate informations, with reckless endangerment in the second degree (Penal Law § 120.20) and unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25). On September 12, 2011, the People filed separate superseding informations charging the same two misdemeanors.
At defendant's arraignment, the defense was notified that, on November 18, 2010, the day after the incident, the officer had viewed a photo array which included a photograph of defendant, and that he had identified defendant as the driver of the vehicle in question, a BMW. At the commencement of the trial, a copy of the photo array was produced to defense counsel. There was no pretrial motion for a Wade hearing.
The trial proof established that, at 5:00 a.m. on November 18, 2010, a police officer on motor patrol on the Long Island Expressway observed a BMW automobile being operated at 83 miles per hour and changing lanes to pass other vehicles without signaling. The officer activated his police lights and pursued the BMW, which, after a time, crossed from the center lane to an area marked by hazard lines, crossed those lines, exited the highway, and came to a stop at a red light at the end of the exit ramp. The officer pulled up behind the BMW and recorded the vehicle's license plate number, whereupon the BMW suddenly accelerated, while the signal light was still red, and entered the south service road of the Long Island Expressway. The officer pursued the BMW at speeds reaching 92 miles per hour until the BMW slowed at a red traffic light at the intersection with Roslyn Road and made the southbound turn onto Roslyn Road, causing a southbound motorist on Roslyn Road to brake forcefully to avoid a collision. The officer pursued the BMW on Roslyn Road, reaching speeds of over 100 miles per hour before abandoning the pursuit in the interest of safety. The officer then ascertained the address of the person listed as the BMW's owner and proceeded to the intersection of Roslyn Road and IU Willets Road, located in the vicinity of the owner's address, whereupon he observed the headlights of a BMW approaching from the opposite direction. The officer drove through the intersection and took up a position directly in front of the BMW, which had come to a stop at the officer's approach. The officer observed that the BMW's license plate number was the same as the vehicle he had been pursuing, and he viewed the driver's face as it was intermittently illuminated by the police vehicle's strobe lights. The BMW then backed up, turned onto a side street, and drove off at a high rate of speed. The officer briefly followed the BMW, but soon abandoned the pursuit.
The officer proceeded to the address indicated on the registration record and spoke to two persons, one of whom acknowledged that her name was Azizian and that she owned the BMW in question. She also stated that the BMW was presently in her son's possession. The other person identified himself as Daniel Azizian's father. Ms. Azizian stated that her son was probably at the home of his "girlfriend" and that she would find him and return with him to her home. Ms. Azizian returned without her son but with Daniel Azizian's uncle, with whom the officer conversed. The officer testified that, after speaking with the uncle, he was certain that the BMW's operator was Daniel Azizian. The officer then returned to the police precinct and, later that day, identified Daniel Azizian in a photo array and executed an affidavit stating that the person in the photograph was the BMW's driver. On May 16, 2011, a detective arrested a person driving the BMW in the vicinity of the address of defendant's girlfriend, who proved to be Daniel Azizian's cousin. Defendant's cousin was released, and defendant was arrested later that day.
Asked at trial to identify the BMW's operator, the officer indicated defendant but stated that he had learned defendant's identity only "at a much later time." The officer's description of the person he saw operating the BMW was limited to a white male in his twenties with short hair, but the officer insisted that the face of the driver was "etched" in his mind. On cross-examination, the officer testified that his identification was based on his recollection of the details of the driver's eyes, nose and mouth, and that the officer was "one hundred percent certain" that defendant was the driver. The defense presented one witness, defendant's cousin, who testified that the keys to the BMW were available to the three or four persons who lived at defendant's girlfriend's house and that everyone drove the vehicle from time to time. The jury convicted defendant of all of the charges.
Defendant moved pursuant to CPL 440.10 to vacate the judgments of conviction, alleging the ineffective representation of trial counsel, specifically, counsel's failure to move for a Wade hearing, either pretrial or following the officer's identification testimony; counsel's failure to investigate and to interpose an alibi defense; and counsel's failure to request a missing witness charge with respect to the People's failure to produce the officer who had, in error, arrested defendant's cousin. The motion was supported by the affidavits of defendant's spouse, who claimed defendant had spent the day with her either at work or at home, and of a friend, who stated that he and others were using the vehicle at the time of the incident and that defendant was not present. The friend did not identify the driver. The District Court denied the motion, without a hearing, and defendant has not sought leave to appeal from that order.
On appeal, defendant argues that his trial counsel was ineffective, basing his claims, in significant part, on the papers submitted in support of the CPL 440.10 motion; that the detective who arrested the cousin was a missing witness; that the court allowed inadmissible hearsay in the form of the officer's conclusions after speaking with defendant's uncle; and that the convictions were against the weight of the evidence.
For the reasons that follow, we affirm the judgments of conviction, with the exception of the judgment convicting defendant of unsafe passing on the left, which judgment we find to be against the weight of the evidence.
"The right to effective assistance of counsel is guaranteed by the Federal and State constitutions. . . . [To establish ineffective representation u]nder the federal standard . . . a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . Under the state standard, the constitutional requirements for the effective assistance of counsel are met when the defense attorney provides meaningful representation" (People v Mehmood, 112 AD3d 850, 854 [2013] [internal quotation marks and citations omitted]). In general, under both standards, " it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709 [1988]; e.g. People v Robles, 116 AD3d 1071, 1071 [2014]), and it is not enough merely to show how the defense might have been more effective (see People v Turner, 5 NY3d 476, 480 [2005] [noting that the Court had "rejected ineffective assistance claims despite significant mistakes by defense counsel"]). "[T]he emphasis of some defenses over others is a matter of trial strategy that will not be second-guessed on appeal" (People v Rodriguez, 132 AD2d 682, 682 [1987]).
In a particular case, the absence of "any sound reason for the defense counsel's failure to investigate the defendant's alibi or to call any of the alibi witnesses to testify at trial" might justify an inference of ineffective assistance (People v Bussey, 6 AD3d 621, 623 [2004]; see also People v Nau, 21 AD3d 568, 569 [2005]; People v Perez, 31 Misc 3d 131[A], 2011 NY Slip Op 50586[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). However, challenges to a defense counsel's strategy with respect to selecting the defense believed to have the greatest likelihood of success and the manner in which that defense is orchestrated, normally are properly explored in a motion pursuant to CPL 440.10 to permit the record to be expanded as to the facts and issues that influenced counsel's representation (e.g. People v Medina-Gonzalez, 116 AD3d 519, 520 [2014]; People v Bennett, 115 AD3d 973, 974 [2014]). This case does not represent one of those "rare instances" (Medina-Gonzalez, 116 AD3d at 520) where the record is sufficient to permit adequate review of the claims without the benefit of the motion (see People v Brown, 45 NY2d 852, 853-854 [1978]; e.g. People v Turner, 5 NY3d at 481]). As noted above, on appeal, defendant relies heavily on affidavits and arguments submitted in support of his CPL 440.10 motion, but as leave to appeal from the motion's denial has not been sought and granted (cf. People v Jenkins, 84 AD3d 1403, 1409 [2011]), those submissions are dehors the record and may not be considered on this appeal (CPL 450.15, 460.15; People v Boyce, 118 AD3d 1016 [2014]; People v Shorter, 106 AD3d 1115 [2013]; People v Brightley, 56 AD3d 314, 315 [2008]). Defendant's claim that trial counsel failed to adequately investigate and develop an alibi defense is based almost entirely on those submissions, and "[t]o the extent that the existing record permits review" (People v Lopez, 2 AD3d 234, 234 [2003]; see also People v Troche, 81 AD3d 990, 991 [2011]), there is no basis for an inference that trial counsel's representation on this issue was anything less than effective.
As for the failure to move for a Wade hearing, upon the available record it cannot be said that counsel's representation was ineffective. Defendant does not allege that the identification procedure itself was unduly suggestive or otherwise flawed in any respect, and he does not deny that the photograph selected was of him. Further, defense counsel might well have considered a pretrial hearing prejudicial in that the officer's recollection of defendant's appearance might have been reinforced by a new exposure to the photo shortly before the trial, and if he elicited testimony during cross-examination with respect to the identification procedure, he might well have opened the door to normally inadmissible testimony (e.g. People v Banks, 74 AD3d 1214, 1215 [2010]; People v Hamilton, 33 AD3d 937 [2006]).
Defendant's third claim of ineffective assistance of counsel—the failure to seek a missing witness charge with respect to the detective who mistakenly arrested defendant's cousin—is also without merit. A "missing witness" is an "uncalled witness [who] is knowledgeable about a material issue upon which evidence is already in the case [who] . . . would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and [who] is available to such party" (People v Kitching, 78 NY2d 532, 536 [1991]; see also People v Hall, 18 NY3d 122, 131 [2011]). While identification was a contested issue in this case, defendant offers no compelling explanation of how the detective's testimony as to his arrest of defendant's cousin would implicate the weight to be given the People's evidence that defendant was the BMW's driver. Moreover, as defendant's cousin testified at length about his arrest, the detective's account of that arrest would have been largely cumulative.
The record otherwise supports an inference that defendant received effective representation. Counsel appeared adequately acquainted with the facts of the case and the applicable law. In his opening statement, counsel argued vigorously that the People would fail to prove, beyond a reasonable doubt, that defendant was the driver of the BMW, which was the logical defense given what counsel anticipated to be the officer's unrebuttable testimony as to the driver's conduct, namely, the repeated episodes of speeding, the illegal lane changes, the passing, signal, hazard pavement marking and traffic light violations, and the conduct that established the commission of the misdemeanors. Counsel's long and detailed cross-examination of the officer exhibited familiarity with the documentation produced in relation to the case, elicited flaws in the officer's recollection of certain details, and probed for weaknesses in the officer's claim to have observed the driver well enough to identify defendant as the driver. In the course of his summation, counsel presented a coherent and detailed analysis of the trial evidence to support his argument that the identification evidence was insufficient to prove, beyond a reasonable doubt, the identity of the BMW's operator. On this record, trial counsel provided meaningful representation.
The claim that the trial court allowed hearsay testimony that bolstered the officer's identification of defendant is without merit. "[A] police [officer's] testimony that the defendant became a suspect after the [officer] spoke with nontestifying individuals who did not witness the crime [is normally admissible where the] testimony [i]s elicited not for the truth of the matter asserted, but to explain the sequence of events leading to the defendant's arrest . . . . Moreover [where] there [is] no suggestion that the[] individuals implicitly accused or even possessed sufficient information to implicate, the defendant in the commission of the crime . . .there [i]s no danger that the jury would treat this evidence as an accusation by a nontestifying witness" (People v Tucker, 54 AD3d 1065, 1066 [2009] [internal quotation marks and citations omitted]; cf. People v Wilson, 101 AD3d 764, 765 [2012] [finding error where "the testimony was offered for its truth, i.e., to prove that the person the eyewitness saw (commit the offense) was, in fact, (the defendant)"]). "[T]here [i]s no testimony that [defendant's uncle] actually implicated the defendant as the perpetrator" (People v Dunbar, 74 AD3d 1227, 1228 [2010]), nor did the court "permit any hearsay testimony regarding the statements of the nontestifying witness . . . and there was no danger that the jury could infer that the nontestifying witness possessed information which could implicate the defendant" (People v Brody, 82 AD3d 784, 784-785 [2011]).
Finally, in the exercise of this court's statutory authority to determine whether a conviction is against the weight of the evidence (CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we find that, with a single exception, the verdicts were not against the weight of the evidence. Here, the officer's testimony as to the BMW driver's commission of the several moving violations was entirely credible and sufficed to establish the elements of all but one of the offenses. The officer testified as to his training in estimating the speeds of moving vehicles (within plus or minus three miles per hour), that he had confirmed his estimate of the BMW's speed on the Long Island Expressway with a calibrated laser device, and that the BMW had changed lanes at high speeds without signaling, and had crossed pavement markings before entering the exit ramp. The BMW then passed a red traffic light before traveling at extremely high speeds on an expressway service road and on a winding residential road. The elements of reckless endangerment in the second degree were established by proof that defendant had forced another motorist to avoid a collision by braking to a stop so sharply that the motorist's vehicle had "nosed down," and had driven at speeds in excess of 100 miles per hour (at times, over 112 miles per hour, the maximum speed of the officer's vehicle) on residential streets ( see e.g. People v Maisonett, 64 AD3d 794 [2009]). The offense of unlawful fleeing a police officer in a motor vehicle in the third degree was established by proof that defendant had accelerated through a red light while the officer's "stop" lights were activated, had traveled at speeds of over 100 miles per hour, knowing that he was followed by a police vehicle signaling him to pull over, and had backed up from the police vehicle positioned in his lane of travel "nose-to-nose" and with its lights activated, and had again departed at a high rate of speed.
With respect to the judgment convicting defendant of reckless driving, while defendant may be correct that merely exceeding the speed limit does not commit that offense (People v Asaro, 21 NY3d 677, 684 [2013]), reckless conduct may nevertheless be found upon proof "that defendant did more than merely drive faster than the legal limit" but traveled "at more than double the posted speed limit of 55 miles per hour" (id.; see e.g. People v Reichel, 110 AD3d 1356, 1363 [2013] [recklessness established where the defendant "drove 76 miles per hour through a residential neighborhood having a posted speed limit of 30 miles per hour, at night"]). Although these and other cases cite additional indicia of recklessness aside from excessive speeding, there can be no dispute that, as in defendant's case, a person who operates a vehicle at speeds of 92 miles per hour in a 40 miles per hour speed zone, and 114 miles per hour in a 40 miles per hour speed zone in a residential area, and causes another motorist to brake with extreme force to avoid a collision, commits the offense of reckless driving.
The only issue requiring a closer examination for weight of the evidence analysis is the identification of defendant as the operator. The credible evidence established that the BMW is owned by defendant's mother and was possessed by defendant, whose first name was confirmed by his father, at the time of the incident. The proof that it was defendant who was driving the BMW during the incident in question is supported by the officer's account of his opportunity to observe the driver while the BMW's interior was intermittently illuminated by a strobe police light. While the testimony as to the specifics of the driver's physiognamy were few, the officer offered a reasonable explanation as to the basis of his recollection of the driver's appearance, namely, his strong impression of the driver's overall facial features which were "etched" in his mind and which were based on the characteristics of the driver's face, including his eyes, nose and mouth. On that basis, he was "[o]ne hundred percent" certain that defendant was the driver. While a contrary inference would not be unreasonable (see People v Bleakley, 69 NY2d 490, 495 [1987]), that does not require a finding that the judgments of conviction were against the weight of the evidence.
However, with respect to the conviction of unsafe passing in violation of Vehicle and Traffic Law § 1124, there was no testimony that defendant operated his vehicle "to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction" (Vehicle & Traffic Law § 1124). Thus, that conviction must be reversed and the accusatory instrument charging that offense dismissed.
Accordingly, the judgment convicting defendant of unsafe passing on the left is reversed and the accusatory instrument charging that offense is dismissed. The remaining judgments of conviction are affirmed.
Marano, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: February 17, 2015