Opinion
11431 11431A Ind. 448/14
04-30-2020
The PEOPLE of the State of New York, Respondent, v. Gary DUBOIS, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Oing, JJ.
The court properly denied defendant's CPL 440.10 motion. A records custodian's trial testimony about the timing of a text message sent by defendant on the day of the crime was later acknowledged to have been mistaken. However, defendant did not establish that he was therefore entitled to a new trial on any of the grounds cited in his motion. There was no evidence of misconduct by the prosecutor, and, in any event, there was not even a reasonable possibility that the testimony at issue, whether it is described as "false" or mistaken, contributed to the verdict. There was overwhelming direct and circumstantial evidence of defendant's guilt, including, among other things, surveillance videotapes and undisputed phone records. Trial counsel's efforts to challenge the testimony at issue were not deficient under either the state or federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that counsel's conduct in this regard fell below an objective standard of reasonableness, or that they deprived defendant of a fair trial or affected the outcome of the case.
The court properly denied defendant's suppression motion. The motion court correctly determined that although the police made an entry in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), suppression of defendant's phone was not required, since the seizure of the phone from defendant's person occurred at the police station and had no connection with the police entry into defendant's residence (see People v. Padilla, 28 A.D.3d 236, 237, 811 N.Y.S.2d 669 [1st Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] ; People v. Jackson, 17 A.D.3d 148, 792 N.Y.S.2d 450 [2005], lv denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005] ). Before inspecting the phone, the police obtained an undisputedly valid warrant, which addressed the special privacy concerns involved with phones.
The court providently exercised its discretion in admitting a phone call defendant made while in custody awaiting trial that could reasonably have been interpreted as an admission, or evidence of his consciousness of guilt. The possibility of innocent interpretations went to the weight to be given this evidence, not its admissibility (see People v. McKenzie, 161 A.D.3d 703, 704, 78 N.Y.S.3d 66 [2018], lv denied 32 N.Y.3d 1113, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ).
In any event, in light of the overwhelming evidence of defendant's guilt, there was no reasonable possibility that any of the errors claimed by defendant contributed to the conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
We perceive no basis for reducing the sentence.