Opinion
299 KA 15–00970
03-23-2018
The PEOPLE of the State of New York, Respondent, v. John CONWAY, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERMemorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and conspiracy in the second degree (§ 105.15). The conviction arises out of defendant's attempt to kill, by shooting and repeatedly stabbing him, the husband of defendant's paramour.
We reject defendant's contention that County Court erred in discharging a deaf sworn juror and replacing that juror with an alternate. After making reasonable but unsuccessful attempts to obtain the services of a sign language interpreter, the court properly exercised its discretion in determining that the deaf juror was unavailable for continued service (see People v. Newton, 144 A.D.3d 1617, 1617, 41 N.Y.S.3d 846 [4th Dept. 2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ), and that an adjournment would not enable the court to obtain the services of an interpreter but would only needlessly delay the trial (see People v. Jeanty, 94 N.Y.2d 507, 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 [2000], rearg. denied 95 N.Y.2d 849, 713 N.Y.S.2d 524, 735 N.E.2d 1289 [2000] ; People v. Jones, 253 A.D.2d 665, 665, 677 N.Y.S.2d 463 [1st Dept. 1998], lv denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752 [1998], reconsideration denied 92 N.Y.2d 1050, 685 N.Y.S.2d 429, 708 N.E.2d 186 [1999] ). Defendant failed to preserve for our review his contention that discharging the deaf juror was contrary to Judiciary Law § 390(1), as amended in 2015, which became effective several months after jury selection in defendant's trial (see L. 2015, ch. 272, § 1). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
We agree with defendant that the court erred in allowing the People to introduce in evidence the photograph of a handgun taken with a camera that had been seized by the police from defendant's storage unit. Prior to trial, the prosecutor unequivocally stated that nothing seized from the storage unit would be offered at trial, and defense counsel was entitled to rely upon that statement when she argued in her opening statement that the People had no evidence tying defendant to a gun (see generally People v. Shaulov, 25 N.Y.3d 30, 34–35, 29 N.E.3d 227 [2015] ). Nevertheless, we conclude that the error in admitting the photograph in evidence is harmless inasmuch as the evidence of guilt is overwhelming and there is no significant probability that defendant would have been acquitted had it not been for that error
(see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant failed to preserve for our review his contention that the court improperly precluded him from calling a police detective as an expert witness (see generally People v. Mejia, 221 A.D.2d 182, 182, 633 N.Y.S.2d 157 [1st Dept. 1995], lv denied 87 N.Y.2d 975, 642 N.Y.S.2d 205, 664 N.E.2d 1268 [1996] ). Indeed, defense counsel stated that she did not plan to call the detective and the court never made any ruling on the detective's qualification to testify as an expert (see generally People v. Hazzard, 129 A.D.3d 1598, 1600, 12 N.Y.S.3d 415 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
The court properly refused to suppress statements made by defendant after he advised the officer conducting the interrogation that he had a lawyer on an unrelated charge. Contrary to defendant's contention, that statement, standing alone, did not constitute an unequivocal invocation of the right to counsel (see People v. Henry, 111 A.D.3d 1321, 1321–1322, 974 N.Y.S.2d 231 [4th Dept. 2013], lv denied 23 N.Y.3d 1021, 992 N.Y.S.2d 803, 16 N.E.3d 1283 [2014] ; People v. Balkum, 71 A.D.3d 1594, 1596, 897 N.Y.S.2d 824 [4th Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010] ). In any event, any error in admitting the statement must be deemed harmless (see People v. Young, 153 A.D.3d 1618, 1619, 61 N.Y.S.3d 752 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017] ).
Viewing the evidence in light of the elements of the crimes of attempted murder and conspiracy 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 finding defendant guilty of those crimes is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.