Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Stephen C. DAGGETT, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Danielle C. Wild of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Danielle C. Wild of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[2] ). He was acquitted of a greater charge of attempted assault in the first degree (§§ 110.00, 120.10 [1] ). At trial, it was undisputed that defendant stabbed the victim with an object, identified at times as a stick or a fire poker, causing injuries. In his statements to law enforcement officers as well as his testimony before the grand jury, all of which were admitted in evidence at trial, defendant contended that he stabbed the victim in self-defense, alleging that the victim and two others were threatening to attack him. On appeal, defendant contends that Supreme Court erred in several respects when instructing the jury on the justification defense.
First, he contends that the court impermissibly reduced the People's burden of proof when it instructed the jury that, in order to find that the People had failed to disprove the defense of justification, the jury had to find that the victim "and others" were using or about to use deadly physical force on defendant, rather than using the words "or others" (emphasis added). Defendant failed to object to the charge as given to the jury, and his contention that the justification charge impermissibly reduced the People's burden of proof is subject to the rules of preservation (see People v. Benjamin, 204 A.D.2d 996, 996, 612 N.Y.S.2d 517, lv. denied 83 N.Y.2d 1002, 616 N.Y.S.2d 483, 640 N.E.2d 151 ; see also People v. Polk, 118 A.D.3d 564, 565–566, 988 N.Y.S.2d 172, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 ; People v. Caldwell, 196 A.D.2d 760, 761, 602 N.Y.S.2d 14, lv. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469 ; People v. Vasquez, 176 A.D.2d 444, 444, 574 N.Y.S.2d 542, lv. denied 79 N.Y.2d 865, 580 N.Y.S.2d 737, 588 N.E.2d 772 ; see generally People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ; People v. Thomas, 50 N.Y.2d 467, 471–472, 429 N.Y.S.2d 584, 407 N.E.2d 430 ). In any event, even assuming, arguendo, that the court used an "obviously incorrect word[ ]" when it charged the jury in the conjunctive versus the disjunctive (People v. Murphy, 128 A.D.2d 177, 185, 515 N.Y.S.2d 895, affd. 70 N.Y.2d 969, 525 N.Y.S.2d 834, 520 N.E.2d 552 ), we conclude that any error is harmless inasmuch as defendant, in his admissions, repeatedly contended that the victim and two others were threatening to attack him (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). We thus conclude that defendant failed to establish that defense counsel was ineffective in failing to object to the court's use of that word inasmuch as there was a legitimate reason for defense counsel's failure to object to the charge as given (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see also People v. Carter, 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464, affd. 7 N.Y.3d 875, 826 N.Y.S.2d 588, 860 N.E.2d 50 ).
Defendant's second challenge to the court's instruction on justification is that the court erred in failing to instruct the jury that defendant had no duty to retreat in his dwelling. Inasmuch as defendant failed to request such an instruction or object to the instruction as given, he has failed to preserve his contention for our review (see People v. Fagan, 24 A.D.3d 1185, 1187, 807 N.Y.S.2d 239 ; People v. Shaut, 261 A.D.2d 960, 961, 690 N.Y.S.2d 372, lv. denied 93 N.Y.2d 1045, 697 N.Y.S.2d 877, 720 N.E.2d 97 ; People v. Sanchez, 131 A.D.2d 606, 608, 516 N.Y.S.2d 504, lv. denied 70 N.Y.2d 717, 519 N.Y.S.2d 1053, 513 N.E.2d 1321 ). In any event, we conclude that his contention lacks merit because there is no reasonable view of the evidence that defendant was in his dwelling at the time of the assault (see People v. Aiken, 4 N.Y.3d 324, 329–330, 795 N.Y.S.2d 158, 828 N.E.2d 74 ). We thus likewise reject defendant's contention that defense counsel was ineffective in failing to request such an instruction or object to the instruction as given (see e.g. People v. Johnson, 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 ; People v. Peterkin, 89 A.D.3d 1455, 1456–1457, 932 N.Y.S.2d 639, lv. denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 ).
Defendant's third challenge to the justification charge is that the court erred in failing to instruct the jury that it was to cease deliberating and report a verdict of not guilty on all counts if it found defendant not guilty by reason of justification on the top count (see generally People v. Castro, 131 A.D.2d 771, 773–774, 516 N.Y.S.2d 966 ). Defendant, however, failed to request such an instruction or object to the instruction as given and thus failed to preserve that contention for our review (see People v. Velez, 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 ; People v. Palmer, 34 A.D.3d 701, 703–704, 826 N.Y.S.2d 77, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 ; People v. Green, 32 A.D.3d 364, 365, 820 N.Y.S.2d 271, lv. denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 ). We note, however, that there was "overwhelming evidence disproving justification, including forensic evidence [disproving defendant's version of the events] and the testimony of [a] ... witness who observed the incident," and we decline to exercise our power to reach the issue as a matter of discretion in the interest of justice (Palmer, 34 A.D.3d at 703–704, 826 N.Y.S.2d 77 ; see CPL 470.15[6][a] ). We further conclude that defense counsel was not ineffective in failing to request such an instruction or object to its absence. The absence of such an instruction did not, in our view, " ‘deprive defendant of a fair trial or affect the outcome’ " (People v. Jackson, 140 A.D.3d 1771, 1772, 32 N.Y.S.3d 430, lv. denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 ; see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).
Defendant further contends that the court should have precluded the People from using at trial the oral statements he made during a recorded interview at the police station because the People's CPL 710.30 notice was untimely. Although defendant did not receive a copy of the DVD within the 15–day time period required by CPL 710.30(2), he filed a motion to suppress the contents of the DVD after expiration of the 15–day period and before he actually received a copy of the DVD. By moving for suppression at a time when he was aware of the People's failure to comply with the 15–day period, defendant waived his right to challenge the People's failure to comply with that time period (see CPL 710.30[3] ; see generally People v. Bernier, 141 A.D.2d 750, 751–752, 529 N.Y.S.2d 847, affd. 73 N.Y.2d 1006, 541 N.Y.S.2d 760, 539 N.E.2d 588 ).
Defendant also contends that the court should have precluded the People from using the statements at trial because the CPL 710.30 notice was defective inasmuch as it identified the incorrect officer to whom defendant's statements were made. We reject that contention. On the first day of the suppression hearing, i.e., after defendant had moved to suppress the statements on the DVD, defense counsel noted that the defense had only recently been given a copy of the DVD. Until that time, defense counsel was not aware that the CPL 710.30 notice had listed the wrong officer. Defense counsel thus sought preclusion based on that previously unknown defect. We reject the People's contention that, by his earlier motion to suppress, defendant waived his right to challenge a defect in the CPL 710.30 notice of which he could not have been aware at the time the suppression motion was filed (see Bernier, 73 N.Y.2d at 1008, 541 N.Y.S.2d 760, 539 N.E.2d 588 ; People v. Miles, 163 A.D.2d 330, 331–332, 557 N.Y.S.2d 163 ). Nevertheless, we conclude that the court properly denied the motion to preclude. It is well settled that "the primary purpose of the notice requirement is to implement the constitutional guarantees by alerting the defendant to the possibility that evidence identifying him as the person who committed the crime may be constitutionally tainted and subject to a motion to suppress" (People v. Collins, 60 N.Y.2d 214, 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188 ). Here, the notice served that purpose inasmuch as defendant was able to, and did, timely move to suppress the statements in the DVD. The incorrect name of the officer who conducted the interview did not change the substance of the notice or the ability of defense counsel to make a timely motion for a hearing (see People v. Ocasio, 183 A.D.2d 921, 922–923, 584 N.Y.S.2d 156, lv. denied 80 N.Y.2d 932, 589 N.Y.S.2d 859, 603 N.E.2d 964 ).
Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation, identifying two particular statements that he contends denigrated the defense and constituted improper vouching for a witness. That contention is not preserved for our review (see People v. Simmons, 133 A.D.3d 1275, 1277, 20 N.Y.S.3d 787, lv. denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 ; People v. Smith, 11 A.D.3d 899, 900, 782 N.Y.S.2d 175, lv. denied 3 N.Y.3d 761, 788 N.Y.S.2d 677, 821 N.E.2d 982 ) and, in any event, it lacks merit. We conclude that the prosecutor's conduct "was not so egregious as to deny defendant a fair trial" (People v. White, 291 A.D.2d 842, 843, 737 N.Y.S.2d 181, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618 ; see People v. Choi, 137 A.D.3d 808, 810, 26 N.Y.S.3d 333, lv. denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 ).
Viewing the evidence in light of the elements of the crime 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 ), we conclude that the verdict 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 ). We have reviewed defendant's remaining challenges to the effectiveness of counsel and conclude that they lack merit. The "evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.