Opinion
362 KA 21-01239
05-05-2023
The PEOPLE of the State of New York, Respondent, v. William Patrick FRICKE, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM PATRICK FRICKE, DEFENDANT-APPELLANT PRO SE. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM PATRICK FRICKE, DEFENDANT-APPELLANT PRO SE.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of murder in the first degree ( Penal Law § 125.27 [1] [a] [vii] ; [b]), attempted murder in the first degree ( §§ 110.00, 125.27 ), assault in the first degree (§ 120.10 [1], [4]), and criminal possession of a weapon in the second degree (§ 265.03 [1] [b]), one count of kidnapping in the first degree (§ 135.25 [3]), and four counts of burglary in the first degree (§ 140.30 [2], [3]).
Defendant contends in his main brief that the verdict with respect to counts 2, 4, 5, 7, 10 and 11 is against the weight of the evidence inasmuch as the People failed to establish that he committed burglary, specifically that defendant knew that he did not have permission to re-enter the residence. "The crime of burglary requires only a knowing unlawful entry with intent to commit a crime therein" ( People v. Mainella , 2 A.D.3d 1330, 1330, 769 N.Y.S.2d 802 [4th Dept. 2003], lv denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004], reconsideration denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575 [2004] ). We conclude that, viewing the evidence in light of the elements of the aforementioned counts 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] ), the verdict with respect to those counts 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] ; People v. Dowdall , 236 A.D.2d 836, 836-837, 654 N.Y.S.2d 72 [4th Dept. 1997] ; People v. Jordan , 193 A.D.2d 890, 891, 893-894, 597 N.Y.S.2d 807 [3d Dept. 1993], lv denied 82 N.Y.2d 756, 603 N.Y.S.2d 997, 624 N.E.2d 183 [1993] ). Indeed, the weight of the evidence supports the jury's determination that defendant knew he did not have permission to re-enter the residence after he had threatened the male victim (victim) with a gun, stabbed him in the chest, and repeatedly beat the female victim (decedent) about the head before dragging her outside.
Defendant also contends in his main and pro se supplemental briefs that the verdict with respect to counts 1, 3 and 6 is against the weight of the evidence because the People failed to prove that he committed kidnapping in the first degree. We reject that contention. The victim's testimony that defendant dragged the decedent outside by the hood of her sweatshirt was not incredible as a matter of law (see People v. Savery , 209 A.D.3d 1268, 1270, 175 N.Y.S.3d 801 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 781, 204 N.E.3d 417 [2023] ) and any inconsistencies in that testimony merely presented a credibility issue for the jury to resolve (see People v. Williams , 179 A.D.3d 1502, 1503, 118 N.Y.S.3d 847 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; People v. Cross , 174 A.D.3d 1311, 1314-1315, 104 N.Y.S.3d 480 [4th Dept. 2019], lv denied 34 N.Y.3d 950, 110 N.Y.S.3d 640, 134 N.E.3d 639 [2019] ).
Defendant failed to preserve his contention in his main brief that his conviction of criminal possession of a weapon in the second degree is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn. , Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Defendant's constitutional challenge is not preserved for our review inasmuch as he failed to raise any such challenge during the proceedings in Supreme Court (see People v. Beltran , 213 A.D.3d 1293, 1293, 183 N.Y.S.3d 239 [4th Dept. 2023] ; People v. Jacque-Crews , 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ). Contrary to defendant's contention, we conclude that his constitutional challenge is not exempt from the preservation rule (see People v. Thomas , 50 N.Y.2d 467, 472-473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ; Jacque-Crews , 213 A.D.3d at 1336, 183 N.Y.S.3d 234 ; cf. People v. Patterson , 39 N.Y.2d 288, 296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ).
Defendant's contention in the main brief and pro se supplemental brief that prosecutorial misconduct deprived him of a fair trial is unpreserved inasmuch as defendant failed to object to the allegedly improper behavior (see People v. Freeman , 206 A.D.3d 1694, 1695, 170 N.Y.S.3d 445 [4th Dept. 2022] ; People v. Santiago , 185 A.D.3d 1151, 1154, 126 N.Y.S.3d 812 [3d Dept. 2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 290, 155 N.E.3d 783 [2020] ; People v. Smith , 150 A.D.3d 1664, 1666, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ). In any event, even assuming, arguendo, that the challenged conduct was inappropriate, we conclude that it was not so pervasive or egregious as to have deprived defendant of a fair trial (see People v. Horton , 79 A.D.3d 1614, 1616, 913 N.Y.S.2d 463 [4th Dept. 2010], lv denied 16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200 [2011] ; People v. Williams , 77 A.D.3d 508, 508, 908 N.Y.S.2d 588 [1st Dept. 2010], lv denied 16 N.Y.3d 838, 921 N.Y.S.2d 202, 946 N.E.2d 190 [2011] ; see also Santiago , 185 A.D.3d at 1155, 126 N.Y.S.3d 812 ).
Contrary to defendant's contention in the main brief, the court did not abuse its discretion in excluding the testimony of one of defendant's proffered witnesses. Although a character witness may give testimony regarding a defendant's general reputation in the community, a witness may "not testify to specific acts of a defendant and may not give his or her personal opinion of defendant's character based on personal knowledge" ( People v. Mancini , 213 A.D.2d 1038, 1039, 627 N.Y.S.2d 488 [4th Dept. 1995], lv denied 85 N.Y.2d 976, 629 N.Y.S.2d 736, 653 N.E.2d 632 [1995] ; see People v. McGuinness , 245 A.D.2d 701, 702, 665 N.Y.S.2d 752 [3d Dept. 1997] ; People v. Berge , 103 A.D.2d 1041, 1041-1042, 478 N.Y.S.2d 433 [4th Dept. 1984] ). Inasmuch as the proffered witness would have testified to a specific interaction that he had with defendant, which tended to show that defendant would not have responded in this instance with violence, the court properly precluded the evidence (see People v. Van Gaasbeck , 189 N.Y. 408, 413-416, 418, 421 [1907] ; People v. Kennard , 160 A.D.3d 1378, 1380, 76 N.Y.S.3d 309 [4th Dept. 2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ; see also People v. Schafer , 81 A.D.3d 1361, 1363, 916 N.Y.S.2d 414 [4th Dept. 2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ).
Defendant's contention in his pro se supplemental brief that the court and defense counsel erred in failing to ensure his presence in the courtroom when the parties discussed the jury instructions and the written requests of the jury during deliberations is belied by the record, which establishes that he was present at all relevant times. To the extent that factual assertions in support of that contention may exist dehors the record on appeal, they must be raised by way of a CPL article 440 motion (see generally People v. Mahoney , 175 A.D.3d 1034, 1036, 108 N.Y.S.3d 104 [4th Dept. 2019], lv denied 35 N.Y.3d 943, 124 N.Y.S.3d 293, 147 N.E.3d 563 [2020] ; People v. McDermott , 76 A.D.3d 790, 791, 906 N.Y.S.2d 415 [4th Dept. 2010] ). Defendant's related contention that the court erred in its response to the jury's request to have certain testimony read back in its entirety has been waived inasmuch as defense counsel indicated that he was satisfied with the court's approach in response to that inquiry (see People v. Banks , 74 A.D.3d 1783, 1783, 902 N.Y.S.2d 756 [4th Dept. 2010], lv denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011] ).
We have considered defendant's remaining contentions in his main and pro se supplemental briefs and conclude that none warrants reversal or modification of the judgment.