Opinion
301 KA 14-00200
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Natalie A. JOHNSON, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. NATALIE A. JOHNSON, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
NATALIE A. JOHNSON, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts of murder in the second degree ( Penal Law § 125.25 [1], [3] [intentional murder and felony murder, respectively] ). Defendant contends in her main and pro se supplemental briefs that Supreme Court committed reversible error when it discharged three sworn jurors over the objection of defense counsel. Contrary to defendant's contention, however, the court granted the remedy that defense counsel impliedly sought and, because defense counsel failed to object to that remedy or move for a mistrial, that remedy must be deemed to have corrected the error to defendant's satisfaction. Specifically, after the first three jurors were sworn, the prosecutor and defense counsel both advised the court that they believed defendant's right to be present during a material sidebar conference had been violated (see generally People v. Antommarchi , 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ). The court asked defense counsel if he wished "to either retain all three jurors despite what [he] deem[ed] to be legal error or to dismiss or discharge one or all of those ... jurors" and receive an additional peremptory challenge for each juror that he wished to discharge, to which defense counsel responded, "[i]n the event there is legal error, they should be all dismissed." In an effort to remedy the error, the court discharged the three sworn jurors and started over with jury selection. "[B]y consenting to the procedure employed by the court, defendant waived [her] right to appellate review of the court's allegedly improper discharge of the [three] sworn juror[s]" ( People v. Walker , 96 A.D.3d 1481, 1482, 946 N.Y.S.2d 373 [4th Dept. 2012], lv denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ; see People v. Barner , 30 A.D.3d 1091, 1092, 815 N.Y.S.2d 862 [4th Dept. 2006], lv denied 7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800 [2006] ).
Defendant also contends in her main brief that the court erred in permitting a police investigator to give testimony at trial identifying defendant's voice on an audio recording. We reject that contention. The record establishes that the investigator had personal experience with defendant and was familiar with her voice, having met with her face to face for a period of approximately 40 minutes during the investigation. Thus, contrary to defendant's contention, we conclude that the investigator's identification of defendant's voice on the audio recording was confirmatory (see People v. King , 166 A.D.3d 1562, 1564, 88 N.Y.S.3d 737 [4th Dept. 2018], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 763, 138 N.E.3d 492 [2019] ). Contrary to defendant's further contention, there is no requirement that a "testifying officer be qualified as an expert in order to identify the defendant's voice" ( People v. Gouveia , 88 A.D.3d 814, 815, 930 N.Y.S.2d 677 [2d Dept. 2011], lv denied 18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711 [2012] ), and we conclude that the court "properly left to the jury the role of weighing the probative value of the [investigator]'s opinion testimony" regarding the identification of the speaker's voice ( People v. Hoffler , 41 A.D.3d 891, 893, 837 N.Y.S.2d 750 [3d Dept. 2007], lv denied 9 N.Y.3d 962, 848 N.Y.S.2d 30, 878 N.E.2d 614 [2007] ). To the extent that defendant contends the investigator's voice identification testimony improperly bolstered the testimony of another witness for the prosecution, that contention is unpreserved because defendant failed to object to the evidence on that ground at trial (see People v. Williams , 163 A.D.3d 1160, 1164, 80 N.Y.S.3d 547 [3d Dept. 2018], lv denied 32 N.Y.3d 1179, 97 N.Y.S.3d 620, 121 N.E.3d 248 [2019] ).
Defendant also contends in her main brief that the court erred in refusing to preclude certain identification evidence on the ground that the People's second supplemental CPL 710.30 notice was not timely filed within 15 days of defendant's arraignment (see CPL 710.30 [2] ). Initially, we note that there is no indication in the record that the People adduced any testimony at trial with respect to the photo array identification procedure that was the subject of that notice. In any event, we reject defendant's contention. As relevant here, the People filed a supplemental CPL 710.30 notice dated the same day as defendant's arraignment and a second supplemental CPL 710.30 notice dated 22 days later. The latter notice concerned an identification procedure that occurred more than one week after defendant's arraignment, and thus the People could not have included that identification procedure in the prior notice. The People did, however, provide prompt notice to defendant of the post-arraignment identification procedure, and the second supplemental CPL 710.30 notice was served more than two months before the argument of motions, nearly four months before suppression hearings, and more than six months before defendant's trial. Indeed, defense counsel had the opportunity at defendant's Wade hearing to cross-examine the police investigator who conducted the relevant identification procedure. Under the circumstances of this case, we conclude that the second supplemental CPL 710.30 notice "was in compliance with the spirit of [ CPL 710.30 ] and met [the People's] continuing obligation to give prompt notice" ( People v. Green , 127 A.D.3d 1473, 1476, 8 N.Y.S.3d 687 [3d Dept. 2015], lv denied 27 N.Y.3d 965, 36 N.Y.S.3d 626, 56 N.E.3d 906 [2016] ; see CPL 710.30 [1] [b] ; [2] ).
As defendant correctly concedes, she failed to preserve for our review her contention that the conviction of felony murder is not supported by legally sufficient evidence (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Viewing the evidence 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] ), we reject defendant's contention in her main brief that the evidence is legally insufficient to support the conviction of intentional murder (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes 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] ), we conclude that, contrary to the contention of defendant in her main and pro se supplemental briefs, the verdict is not 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 the further contention of defendant in her main brief that she was denied effective assistance of counsel. Inasmuch as the evidence is legally sufficient to support the conviction of felony murder, defense counsel's failure to move for a trial order of dismissal of that count does not constitute ineffective assistance (see People v. Broomfield , 134 A.D.3d 1443, 1444-1445, 21 N.Y.S.3d 781 [4th Dept. 2015], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ). Defense counsel's failure to request an instruction on the affirmative defense to felony murder ( Penal Law § 125.25 [3] ) does not demonstrate ineffective assistance of counsel because the trial evidence did not support that affirmative defense (see People v. Solomon , 16 A.D.3d 701, 702-703, 794 N.Y.S.2d 55 [2d Dept. 2005], lv denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ). Contrary to defendant's contention, the police investigator's identification of defendant's voice on an audio recording in this case was not subject to the notice requirement of CPL 710.30 (see CPL 710.30 [1] [b] ; People v. Johnson , 150 A.D.3d 1390, 1394-1395, 53 N.Y.S.3d 412 [3d Dept. 2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ), and therefore a motion to preclude the investigator's testimony on that basis would not have been successful. Contrary to defendant's contention, the record establishes that defense counsel conducted an adequate cross-examination of a certain prosecution witness (see generally People v. Alexander , 109 A.D.3d 1083, 1085, 972 N.Y.S.2d 124 [4th Dept. 2013] ). Indeed, defense counsel effectively highlighted the inconsistencies between that witness's testimony on direct examination, her testimony before the grand jury, and her statement to police. " ‘[S]peculation that a more vigorous cross-examination might have [undermined the credibility of a witness] does not establish ineffectiveness of counsel’ " ( People v. Lozada , 164 A.D.3d 1626, 1628, 84 N.Y.S.3d 630 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ). Upon review of the record, we conclude that "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defendant's] attorney provided meaningful representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, contrary to defendant's contention in her main brief, the sentence is not unduly harsh or severe.