Opinion
1034 KA 21-00605
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Wendell GRIFFIN, Defendant-Appellant.
STEVEN M. SHARP, ALBANY, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
STEVEN M. SHARP, ALBANY, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury verdict of murder in the second degree ( Penal Law § 125.25 [3] [felony murder]) and two counts of robbery in the first degree (§ 160.15 [1], [2]), in connection with the shooting death of the victim that occurred during the course of a robbery. We affirm.
Defendant contends that the conviction is not supported by legally sufficient evidence because the People did not establish that a robbery occurred, which is an element of all the counts of which defendant was convicted. Insofar as relevant here, a person commits felony murder when he or she "[a]cting either alone or with one or more other persons, ... commits or attempts to commit robbery ... and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [or she], or another participant ... causes the death of a person other than one of the participants" ( Penal Law § 125.25 [3] ). "A person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime ... [either c]auses serious physical injury to another person who is not a participant in the crime; or ... [i]s armed with a deadly weapon" (§ 160.15 [1], [2]).
Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Specifically, we conclude that a rational jury could have inferred beyond a reasonable doubt that defendant committed felony murder and robbery by participating in a robbery that resulted in the shooting death of the victim. There is ample evidence to establish defendant's identity as a perpetrator of the charged crimes inasmuch as surveillance video clearly showed defendant and the codefendant acting in concert in the moments leading up to the codefendant shooting the victim. Supporting the inference that defendant participated in a robbery is evidence that the victim often wore a necklace, but that the necklace was not found on the victim's body after his death (see People v. Good , 201 A.D.2d 254, 254-255, 607 N.Y.S.2d 27 [1st Dept. 1994] ). Further, defendant's course of conduct depicted on the surveillance video fit a " ‘pattern common to robberies’ " that would allow the jury to reasonably infer that he robbed the victim ( People v. Lamont , 25 N.Y.3d 315, 321, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015] ; see People v. Gordon , 23 N.Y.3d 643, 652-653, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ; People v. Luke , 279 A.D.2d 534, 535, 719 N.Y.S.2d 122 [2d Dept. 2001], lv denied 96 N.Y.2d 785, 725 N.Y.S.2d 650, 749 N.E.2d 219 [2001] ). The surveillance video showed defendant peering into the parked vehicle in which the victim was sleeping as though he was casing it, keeping other people who may have interfered to thwart the robbery away from the sleeping victim, and—most crucially—reaching into the vehicle in the vicinity of the victim's neck moments before the shooting and then running away as though he was holding something (see People v. Reed , 22 N.Y.3d 530, 532, 535, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014], rearg denied 23 N.Y.3d 1009, 992 N.Y.S.2d 770, 16 N.E.3d 1249 [2014] ; Luke , 279 A.D.2d at 535, 719 N.Y.S.2d 122 ; People v. Hope , 128 A.D.2d 638, 638-639, 512 N.Y.S.2d 885 [2d Dept. 1987], lv denied 69 N.Y.2d 1005, 517 N.Y.S.2d 1038, 511 N.E.2d 97 [1987] ). In short, "[a]lthough the surveillance footage did not clearly show defendant [taking the necklace from the victim], his other actions on the video ... support a rational inference of [robbery]" ( People v. Johnson , 197 A.D.3d 61, 69, 150 N.Y.S.3d 401 [3d Dept. 2021] ). For the same reasons, viewing the evidence in light of the elements of the crimes as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's contention that he was denied effective assistance of counsel by defense counsel's failure to challenge for cause a prospective juror during jury selection because such a challenge would have had little or no chance of success (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Although at the beginning of voir dire the prospective juror made statements that raised concerns about her impartiality, after further questioning she unequivocally and credibly stated that she would decide the case based solely on the trial evidence and no longer held the opinions that had previously raised concerns about her impartiality (see People v. Warrington , 28 N.Y.3d 1116, 1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] ; People v. Anderson , 113 A.D.3d 1102, 1103, 977 N.Y.S.2d 549 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ; see generally People v. Patterson , 173 A.D.3d 1737, 1739, 102 N.Y.S.3d 853 [4th Dept. 2019], affd 34 N.Y.3d 1112, 117 N.Y.S.3d 660, 140 N.E.3d 982 [2019] ).
We reject defendant's further contention that defense counsel was ineffective because he did not request a circumstantial evidence charge, inasmuch as such a request also "would have had little or no chance of success" ( People v. Lawrence , 192 A.D.3d 1686, 1688, 145 N.Y.S.3d 269 [4th Dept. 2021] [internal quotation marks omitted]). A circumstantial evidence charge "is required only where the evidence against defendant is wholly circumstantial" ( People v. Smith , 145 A.D.3d 1628, 1630, 44 N.Y.S.3d 658 [4th Dept. 2016], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ; see People v. Slade , 133 A.D.3d 1203, 1207, 20 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ), which we conclude is not the case here given, inter alia, the surveillance camera video depicting the robbery and murder (see People v. Geddes , 49 A.D.3d 1255, 1256-1257, 856 N.Y.S.2d 336 [4th Dept. 2008], lv denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 [2008] ; People v. Buskey , 13 A.D.3d 1058, 1059, 787 N.Y.S.2d 796 [4th Dept. 2004] ; see generally People v. Lewis , 300 A.D.2d 827, 829, 752 N.Y.S.2d 172 [3d Dept. 2002], lv denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003] ). Even assuming, arguendo, that defendant was entitled to such a charge, we conclude that the "single error in failing to request such a charge [would] not constitute ineffective representation as it was not so serious as to compromise defendant's right to a fair trial" ( People v. Gunney , 13 A.D.3d 980, 983, 787 N.Y.S.2d 483 [3d Dept. 2004], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ; see Geddes , 49 A.D.3d at 1257, 856 N.Y.S.2d 336 ).
We likewise reject defendant's contention that he was deprived of a fair trial through the use of an interpreter who allegedly had difficulty accurately interpreting a witness's testimony. Defendant failed to establish "a serious error in translation [or] that the alleged problems with the translation prevented him from conducting an effective cross-examination [of the witness in question] or caused any other prejudice" ( People v. Chowdhury , 180 A.D.3d 455, 456, 119 N.Y.S.3d 443 [1st Dept. 2020] ; see People v. Dat Pham , 283 A.D.2d 952, 952, 725 N.Y.S.2d 245 [4th Dept. 2001], lv denied 96 N.Y.2d 900, 730 N.Y.S.2d 797, 756 N.E.2d 85 [2001] ). Further, to the extent that "there were occasional difficulties in translation, they were sufficiently rectified so that the [witness's] testimony was properly presented to the jury" ( People v. Kowlessar , 82 A.D.3d 417, 418, 918 N.Y.S.2d 41 [1st Dept. 2011] ; see People v. Restivo , 226 A.D.2d 1106, 1107, 642 N.Y.S.2d 143 [4th Dept. 1996], lv denied 88 N.Y.2d 883, 645 N.Y.S.2d 458, 668 N.E.2d 429 [1996] ). Defendant's further contentions that the interpreter was not properly sworn and that County Court should have conducted an inquiry into the accuracy of the translation are not preserved for our review (see generally People v. Maldonado , 140 A.D.3d 1530, 1530, 33 N.Y.S.3d 778 [3d Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 381, 68 N.E.3d 110 [2016] ; People v. Rodriguez , 32 A.D.3d 1203, 1204, 821 N.Y.S.2d 331 [4th Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007] ; People v. Hubbard , 184 A.D.2d 781, 781, 585 N.Y.S.2d 483 [2d Dept. 1992], lv denied 80 N.Y.2d 1027, 592 N.Y.S.2d 677, 607 N.E.2d 824 [1992] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We also reject defendant's contention that, at trial, the court erred in allowing a police detective to identify defendant in a surveillance video depicting the robbery and shooting. "A lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury" ( People v. Graham , 174 A.D.3d 1486, 1487-1488, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] [internal quotation marks omitted]; see People v. Russell , 165 A.D.2d 327, 336, 567 N.Y.S.2d 548 [2d Dept. 1991], affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ). We conclude that the court did not abuse its discretion in permitting the challenged testimony because the People presented evidence establishing that the police detective was familiar with defendant based on several prior contacts with defendant over the course of several years. Thus, there "was some basis for concluding that the [police detective] was more likely to identify defendant correctly than was the jury" ( People v. Gambale , 158 A.D.3d 1051, 1053, 70 N.Y.S.3d 684 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ; see People v. Trowell , 172 A.D.3d 1112, 1113, 98 N.Y.S.3d 633 [2d Dept. 2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 30, 129 N.E.3d 350 [2019] ). We reject defendant's contention that a change in his appearance was a prerequisite to the admission of the police detective's testimony (see People v. Pinkston , 169 A.D.3d 520, 521, 94 N.Y.S.3d 268 [1st Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 684, 130 N.E.3d 1294 [2019] ). Based on the foregoing, the police detective's testimony " ‘served to aid the jury in making an independent assessment regarding whether the man in the [video] was indeed the defendant’ " ( People v. Montanez , 135 A.D.3d 528, 528, 25 N.Y.S.3d 18 [1st Dept. 2016], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] ). We also note that the court properly instructed the jury that the police detective merely provided his opinion that defendant was depicted in the video and that the jurors were the ultimate finders of fact on the issue of the identity of the perpetrator, and the jury is presumed to have followed the court's instruction (see People v. Brown , 145 A.D.3d 1549, 1549, 46 N.Y.S.3d 317 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] ).
We reject defendant's further contention that the court erred in permitting a witness to testify at trial about the identification procedures. Testimony about a photo array procedure, and the array itself, may be admitted where, inter alia, the procedure is " ‘blinded,’ " that is, where the person administering the array procedure does not know the suspect's position in the array ( CPL 60.25 [1] [c] [ii] ; see CPL 60.30 ). Here, although the array viewed by the witness was created by the police detective who administered the procedure, the specific procedure conducted was nevertheless blind because the police detective placed three different arrays in envelopes, which he shuffled before having the witness pick one. This procedure is sufficient, in our view, to ensure that, at the time the witness was viewing the array, the police detective did not know the position of defendant in that array (see Dennis v. Secretary, Pennsylvania Dept. of Corr. , 834 F.3d 263, 321 [3d Cir. 2016, McKee, C.J., concurring] ; see generally CPL 60.25 [1] [c] [ii] ).
However, we agree with defendant that the court erred to the extent that it limited defense counsel's cross-examination of a witness regarding his criminal history. "[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony" ( People v. Gross , 71 A.D.3d 1526, 1527, 896 N.Y.S.2d 557 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] [internal quotation marks omitted]; see People v. Dizak , 93 A.D.3d 1182, 1183, 940 N.Y.S.2d 408 [4th Dept. 2012], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012], reconsideration denied 20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ). Here, we conclude that the court erred in limiting defense counsel's cross-examination regarding the underlying facts of a witness's prior drug conviction that occurred two months before the shooting at issue here, inasmuch as those facts bore on the witness's credibility and were not remote or cumulative (see People v. Caines , 221 A.D.2d 278, 278, 634 N.Y.S.2d 94 [1st Dept. 1995], lv denied 88 N.Y.2d 845, 644 N.Y.S.2d 691, 667 N.E.2d 341 [1996] ; People v. Robinson , 133 A.D.2d 859, 861, 520 N.Y.S.2d 415 [2d Dept. 1987] ; cf. People v. Corby , 6 N.Y.3d 231, 235-236, 811 N.Y.S.2d 613, 844 N.E.2d 1135 [2005] ; People v. Burton , 286 A.D.2d 772, 773, 730 N.Y.S.2d 735 [2d Dept. 2001], lv denied 97 N.Y.2d 679, 738 N.Y.S.2d 294, 764 N.E.2d 398 [2001] ).
Nonetheless, we conclude that any error in admitting the challenged testimony, i.e., the police detective testimony regarding the surveillance video and the witness testimony describing the photo array identification, or in limiting the cross-examination of a witness, is harmless in light of the otherwise overwhelming evidence of defendant's guilt and because there was no significant probability that the court's error with respect to any of that testimony contributed to the conviction (see People v. Harlow , 195 A.D.3d 1505, 1508, 148 N.Y.S.3d 593 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 447 [2021] ; People v. Flowers , 95 A.D.3d 1233, 1234, 945 N.Y.S.2d 701 [2d Dept. 2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012] ; People v. Chestnut , 237 A.D.2d 528, 528, 656 N.Y.S.2d 903 [2d Dept. 1997], lv denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057 [1997] ; see generally People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of murder in the second degree under Penal Law § 125.25 (1), and it must therefore be amended to reflect that defendant was convicted under Penal Law § 125.25 (3) (see People v. Ealahan , 198 A.D.3d 1376, 1377, 155 N.Y.S.3d 264 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 787, 178 N.E.3d 434 [2021] ).
All concur except Carni, J., who is not participating.