Opinion
03-16-2017
The PEOPLE of the State of New York, Respondent, v. David EVERETTE, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Freshfields Bruckhaus Deringer U.S. LLP, New York (Alan E. Guy of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Freshfields Bruckhaus Deringer U.S. LLP, New York (Alan E. Guy of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.
TOM, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, KAHN, JJ.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 23, 2011, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed. Order, same court and Justice, entered on or about December 23, 2015, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
Based on our review of the photograph of the lineup viewed by the victim of one of the robberies, we find that the record supports the hearing court's conclusion that the lineup was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99 [1990] ). Given the actual appearances of the lineup participants, the "numerical age difference[s]" were insufficient to show suggestiveness (People v. Holley, 26 N.Y.3d 514, 525, 25 N.Y.S.3d 40, 45 N.E.3d 936 [2015] ), and any height or weight disparity was sufficiently minimized (see id. ).
At trial, the court properly permitted a police officer to testify that the victim of the other robbery identified defendant at a showup. This testimony was admissible, notwithstanding the general rule against third-party bolstering set forth in People v. Trowbridge , 305 N.Y. 471, 113 N.E.2d 841 (1953), because the victim's declaration qualified as an excited utterance. Shortly after the victim was robbed at gunpoint in his taxicab, he called 911 and was brought in a police vehicle to defendant, who was being detained. The victim immediately yelled, "[O]h my God[!] ... [I]t is the same guy.... Thank God you caught him[!]" Under the circumstances, this identification was made "under the stress of excitement caused by an external event, and [was] not the product of studied reflection and possible fabrication" (People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] ). In any event, any error was harmless in light of the overwhelming evidence of guilt and the fact that the officer's testimony was cumulative to the victim's own testimony recounting his out-of-court identification (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The court properly exercised its discretion in denying defendant's severance motion (see CPL 200.20[2][b],[c] ). Aside from being similar in law, the two cab robberies were joinable based on overlapping evidence regarding defendant's distinctive modus operandi. This was established by evidence that, among other things, the robber in both incidents, which occurred within one week of each other, asked to be dropped off at a location within a few blocks of defendant's actual address, engaged both drivers in a wide-ranging conversation on topics such as crime and current events, asked near the end of both rides to be dropped off in the middle of the block adjacent to the corner he had initially requested, immediately shifted to an angry demeanor after opening the door at the end of the ride, and demanded money while appearing to be concealing a weapon in his jacket pocket. These similarities demonstrated a sufficiently distinctive modus operandi, and there was no requirement that the crimes be identical (see People v. Screahben, 35 A.D.3d 246, 825 N.Y.S.2d 52 [1st Dept.2006], lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627 [2007] ; see
also People v. Medina, 66 A.D.3d 555, 887 N.Y.S.2d 567 [1st Dept.2009], lv. denied 13 N.Y.3d 908, 895 N.Y.S.2d 323, 922 N.E.2d 912 [2009] ; People v. Alexander, 294 A.D.2d 118, 740 N.Y.S.2d 873 [1st Dept.2002], lv. denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1 [2002] ; People v. Odenthal, 217 A.D.2d 412, 629 N.Y.S.2d 414 [1st Dept.1995], lv. denied 86 N.Y.2d 845, 634 N.Y.S.2d 454, 658 N.E.2d 232 [1995] ).
Defendant's arguments concerning the People's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we conclude that the People's arguments on the common modus operandi of the two crimes were permissible for the above-discussed reasons, and that the summation otherwise provides no basis for reversal (see People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
After a thorough hearing, the court properly denied defendant's CPL 440.10 motion claiming ineffective assistance of counsel. Defendant has not established that his trial counsel's alleged deficiencies were objectively unreasonable or that they resulted in prejudice under the state or federal standards (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see also Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). At the hearing, counsel explained, in detail, the reasoning behind his strategic decision not to call an expert on eyewitness identifications, instead seeking to cast doubt on the victims' identifications through cross-examination, and he described his extensive experience with such matters. The record establishes that counsel pursued a legitimate strategy that was objectively reasonable (see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011], cert. denied 565 U.S. 912, 132 S.Ct. 325, 181 L.Ed.2d 201 [2011] ). Furthermore, defendant has not shown a reasonable probability that calling an expert would have affected the outcome or fairness of the trial (see e.g. People v. Bracey, 123 A.D.3d 419, 997 N.Y.S.2d 420 [1st Dept.2014], lv. denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ). Even if counsel mistakenly believed that the court had denied, with leave to renew, his predecessor's pretrial motion to present such expert testimony, when in fact the court had merely deferred the decision to the trial court, this did not affect either the reasonableness of the strategy or the absence of prejudice.
For the reasons already stated, counsel's failure to object to the summation remarks challenged on appeal did not constitute ineffective assistance (see People v. Cass, 18 N.Y.3d 553, 564, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ).
We perceive no basis for reducing the sentence.