Opinion
143 KA 15-01642
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Vandon JONES, Defendant-Appellant.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, 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 following a jury trial of two counts of sex trafficking ( Penal Law § 230.34 [1] [a] ), four counts of attempted sex trafficking ( §§ 110.00, 230.34 [1] [a] [two counts]; [4], [5] [c]), and one count each of promoting prostitution in the third degree ( § 230.25 [1] ) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Although defendant contends that his conviction is not supported by legally sufficient evidence, his general motion to dismiss at the close of the People's case did not preserve for our review any of his specific challenges to the sufficiency of the evidence (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and, in any event, defendant did not renew that motion after presenting proof (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). Nevertheless, we necessarily " ‘review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ).
Contrary to defendant's contention, there is no causation element to sex trafficking (see Penal Law § 230.34 [1] [a] ; [4], [5] [c]). The factors listed in section 230.34 do not proscribe a certain result. Rather, they proscribe aggravating conduct by a defendant that elevates the severity of the underlying crime of promoting prostitution (see People v. Coleman , 74 N.Y.2d 381, 385, 547 N.Y.S.2d 814, 547 N.E.2d 69 [1989] ; see also People v. Miller , 87 N.Y.2d 211, 216, 638 N.Y.S.2d 577, 661 N.E.2d 1358 [1995] ; United States v. Maynes , 880 F.3d 110, 114 [4th Cir. 2018] ; United States v. Alvarez , 601 Fed. Appx. 16, 17-18 [2d Cir. 2015], cert denied 575 U.S. 1020, 135 S.Ct. 2337, 191 L.Ed.2d 997 [2015] ). Viewing the evidence in light of the elements of the sex trafficking and attempted sex trafficking 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] ), we conclude that the verdict is not against the weight of the evidence on those counts (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Despite his admission of guilt at trial of promoting prostitution in the third degree by running a business or enterprise involving prostitution activity by two or more prostitutes ( Penal Law § 230.25 [1] ), defendant now contends that the verdict on that count as well as the count related to criminal possession of a controlled substance in the third degree is against the weight of the evidence. We reject that contention (see generally Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "The jury was entitled to credit the testimony of the People's witnesses ... over the testimony of defendant's witnesses, including that of defendant [himself]," and we perceive no reason to disturb those credibility determinations ( People v. Tetro , 175 A.D.3d 1784, 1788, 109 N.Y.S.3d 776 [4th Dept. 2019] ). Contrary to defendant's further contention, the grand jury proceedings were not defective and, as a result, dismissal of the indictment is not warranted. "[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury" ( People v. Fisher , 101 A.D.3d 1786, 1786, 956 N.Y.S.2d 391 [4th Dept. 2012], lv denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013] [internal quotation marks omitted]; see generally People v. Huston , 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). No such conduct occurred in this case.
We reject defendant's contentions that County Court erred in precluding defendant from calling one witness whose proffered testimony was deemed irrelevant and in permitting certain Molineux evidence. It is well settled that a party may not "call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility" ( People v. Pavao , 59 N.Y.2d 282, 288-289, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ; see People v. Snow , 185 A.D.3d 1400, 1402, 128 N.Y.S.3d 114 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 510, 158 N.E.3d 527 [2020] ). Moreover, the court did not err in allowing the People to submit evidence related to conduct concerning other women "to establish defendant's modus operandi and common scheme of using physical abuse to instill fear and obedience in the prostitutes who worked for him" ( People v. Bonner , 94 A.D.3d 1500, 1501, 942 N.Y.S.2d 746 [4th Dept. 2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012], reconsideration denied 20 N.Y.3d 1059, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013] ; see People v. Grant , 104 A.D.2d 674, 674-675, 479 N.Y.S.2d 914 [3d Dept. 1984] ), and the court's instructions with regard to the proper use of such information were appropriate. We have reviewed defendant's remaining challenges to the evidence admitted at trial and conclude that they lack merit.
Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Even assuming, arguendo, that defendant preserved for our review his further contention that he was denied a fair trial by prosecutorial misconduct, we conclude that the alleged errors by the prosecutor, either alone or cumulatively, were not so egregious as to deny defendant a fair trial (see People v. Logan , 178 A.D.3d 1386, 1388, 116 N.Y.S.3d 835 [4th Dept. 2019], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 42, 149 N.E.3d 880 [2020] ; People v. Fick , 167 A.D.3d 1484, 1485-1486, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ).