Opinion
2015–11963 Ind. No. 95/14
03-02-2022
The PEOPLE, etc., respondent, v. Rashad FARMER, appellant.
Carol Kahn, New York, NY, for appellant, and appellant pro se. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Carol Kahn, New York, NY, for appellant, and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered September 17, 2015, convicting him of aggravated family offense (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention, raised in his pro se supplemental brief, that the felony complaint was facially insufficient is unpreserved for appellate review since he never challenged the sufficiency of the felony complaint at his arraignment or in a subsequent motion. In any event, the contention has been rendered academic, since the felony complaint was superseded by an indictment (see People v. Clark , 194 A.D.3d 948, 149 N.Y.S.3d 174 ; People v. Barnette , 150 A.D.3d 1136, 56 N.Y.S.3d 322 ).
The defendant correctly contends that the County Court erred in concluding that he lacked standing to raise a Fourth Amendment challenge to the search of his historical cell site location (hereinafter CSLI) records, initially obtained by an attorney subpoena (see Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 ; Schriro v. Summerlin, 542 U.S. 348, 351–352, 124 S.Ct. 2519, 159 L.Ed.2d 442 ). The records were subsequently obtained by search warrant. In any event, any error in the admission of the defendant's CSLI records was harmless, because the evidence of the defendant's guilt was overwhelming, and there was no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Taylor, 172 A.D.3d 1110, 1111, 98 N.Y.S.3d 456 ).
The County Court providently exercised its discretion in admitting expert testimony on the subject of domestic violence (see People v. Carroll, 95 N.Y.2d 375, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; People v. Whitson, 166 A.D.3d 663, 86 N.Y.S.3d 83 ; People v. Walters, 127 A.D.3d 889, 7 N.Y.S.3d 336 ). The court did not allow the expert to testify regarding the particular facts of this case or to offer an opinion as to whether the conduct at issue constituted domestic violence. Instead, the expert described the general behavior patterns of domestic violence perpetrators and victims in order to explain the behaviors of a battered woman that might be beyond the ken of the average juror (see People v. Carroll, 95 N.Y.2d 375, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; People v. Walters, 127 A.D.3d 889, 7 N.Y.S.3d 336 ; People v. Thompson, 119 A.D.3d 966, 989 N.Y.S.2d 881 ).
The defendant's contention, raised in his pro se supplemental brief, that his waiver of the right to counsel was not knowing, voluntary, and intelligent is without merit. Here, the County Court engaged in a "searching inquiry" to clarify that the defendant understood the ramifications of proceeding pro se before accepting the defendant's waiver ( People v. Stone , 22 N.Y.3d 520, 525, 983 N.Y.S.2d 454, 6 N.E.3d 572 ; see People v. Providence , 2 N.Y.3d 579, 780 N.Y.S.2d 552, 813 N.E.2d 632 ). The defendant's related contention that the court violated his right to due process by failing to aid him, an unrepresented party, is without merit. In its "searching inquiry," the court repeatedly reminded the defendant that by waiving his right to counsel, he would be treated as an attorney, and that the court would not aid him. In any event, the court did not err in refusing to guide the defendant or appoint an investigator to guide him as to how to properly serve a subpoena on a governmental entity. The defendant's additional, related contention that the court failed to aid him by denying his application for an investigator to review newly turned over Rosario material is unpreserved for appellate review because the defendant did not make such an application (see CPL 470.05[2] ; People v. Rosario , 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ). In any event, the prosecutor established that the relevant CDs containing color photos and a recording of a 911 call were timely provided to the defendant. Thus, the defendant failed to establish that there was bad faith on the part of the prosecutor or that he was prejudiced by any late disclosure (see People v. Banch , 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069 ; People v. Smith , 181 A.D.3d 826, 118 N.Y.S.3d 435 ; People v. Thomas , 255 A.D.2d 467, 682 N.Y.S.2d 219 ). The County Court did not improvidently exercise its discretion when it precluded the defendant from recalling a prosecution witness after the People rested their case (see People v. Cruz, 175 A.D.3d 1060, 108 N.Y.S.3d 620 ; People v. Comerford, 70 A.D.3d 1305, 895 N.Y.S.2d 621 ; People v. Wegman, 2 A.D.3d 1333, 769 N.Y.S.2d 682 ). The defendant was afforded a full and fair opportunity to cross-examine the witness (see People v. Adeyemi, 32 A.D.3d 755, 820 N.Y.S.2d 798 ; People v. Wegman, 2 A.D.3d 1333, 769 N.Y.S.2d 682 ; People v. Stevenson, 281 A.D.2d 323, 722 N.Y.S.2d 238 ).
The defendant's contention that the County Court erred in failing to instruct the jury that it had to render a separate verdict on each count charged (see CPL 300.10[4] ) is unpreserved for appellate review because the defendant did not request such a charge (see CPL 470.05[2] ). In any event, the court repeatedly instructed the jury to consider each count of aggravated family offense separately and report a separate verdict on each count (see CPL 300.10[4] ; People v. Goodfriend, 64 N.Y.2d 695, 485 N.Y.S.2d 519, 474 N.E.2d 1187 ; People v. Hard, 139 A.D.2d 592, 527 N.Y.S.2d 86 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.
DUFFY, J.P., IANNACCI, MILLER and CHRISTOPHER, JJ., concur.