Opinion
256 KA 11-02497
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Ronald LARKINS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. Ronald Larkins, Defendant–Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.
Ronald Larkins, Defendant–Appellant Pro Se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, SCONIERS, and VALENTINO, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4 ] ) in connection with his attempt to rob a Ramada Inn in DeWitt, Onondaga County (hereafter, DeWitt attempted robbery), at approximately 12:25 p.m. on August 24, 2010. The evidence at trial included a video recording made by the hotel's security system, in which defendant can clearly be seen entering the building, speaking with the hotel desk clerk, drawing a weapon and pointing it over the counter at the clerk, but then immediately fleeing the building after the clerk ducked and ran from the counter. The video recording shows that defendant wore aviator-style sunglasses, a black shirt or jacket, and a blue necktie. A witness also testified that a man fitting defendant's description and wearing a T-shirt or tank top ran from the vicinity of the Ramada Inn immediately after the DeWitt attempted robbery and then left the area in a brown- or rust-colored Toyota or Lexus.
Members of the New York State Police testified that they stopped defendant on the New York State Thruway approximately 90 minutes after the DeWitt attempted robbery, after Thruway toll collectors at an exit near Weedsport indicated that a brown Toyota or Lexus, generally matching the description of the getaway car, had just entered the Thruway. The police took defendant into custody and found $225 in his pocket. In the vehicle, they also found a necktie, a handgun, and a pair of sunglasses matching those used by the perpetrator in the DeWitt attempted robbery. At the time of the stop, defendant was wearing, inter alia, a green dress shirt on top of a red T-shirt.
Defendant was also charged, in a separate indictment in Cayuga County, with the robbery of a Best Western hotel in Weedsport (hereafter, Weedsport robbery), which occurred approximately an hour after, but prior to defendant's arrest on, the DeWitt attempted robbery. Pursuant to a Molineux ruling (see People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 ), the front desk clerk from the hotel in the Weedsport robbery testified, during the trial of the DeWitt attempted robbery that is before us on this appeal, that she was robbed at gunpoint by a man wearing a green shirt. She further testified that the perpetrator took approximately $200, although she was not certain of the exact amount taken. Pursuant to County Court's Molineux ruling, that witness was not permitted to identify defendant as the perpetrator of the Weedsport robbery.
Defendant contends that he was deprived of a fair trial by the court's Molineux ruling. In determining that the evidence would be admitted, the court concluded, among other things, that the evidence was “ relevant and material to ... the issue[s] of intent” and identification, and “ inextricably interwoven” with the evidence of the charge of attempted robbery being tried. The court also gave limiting instructions regarding the proper use of the Molineux evidence by the jury, which defendant does not challenge on appeal. We conclude that the court's Molineux ruling was not an abuse of discretion (see generally People v. Duperroy, 88 A.D.3d 606, 607, 931 N.Y.S.2d 70, lv. denied 18 N.Y.3d 957, 944 N.Y.S.2d 485, 967 N.E.2d 710 ; People v. Galloway, 61 A.D.3d 520, 520–521, 876 N.Y.S.2d 406, lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 ).
“It is fundamental that evidence of uncharged crimes is not admissible if the sole purpose is to show that the defendant was predisposed to commit the crime charged ... On the other hand, evidence relevant to prove some fact in the case, other than the defendant's criminal propensity, is not rendered inadmissible simply because it may also reveal that the defendant has committed other crimes” (People v. Allweiss, 48 N.Y.2d 40, 46–47, 421 N.Y.S.2d 341, 396 N.E.2d 735 ). Pursuant to the rule in Molineux, 168 N.Y. at 293, 61 N.E. 286, “evidence of uncharged crimes may be relevant to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant” (People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ). “As a corollary, such evidence may be allowed when, as here, it ... is found to be needed as background material or to complete the narrative of the episode” (People v. Till, 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153 [internal quotation marks omitted] ).
Here, the court concluded that the Molineux evidence was admissible to establish defendant's intent, identity, and motive, and to complete the narrative of the events. Initially, we agree with defendant that such evidence was not properly admitted on the issue of identity inasmuch as defendant's identity as the perpetrator of the attempted robbery was “ ‘conclusively established’ ” by the clear video recording from the hotel's security system (People v. Robinson, 68 N.Y.2d 541, 548, 510 N.Y.S.2d 837, 503 N.E.2d 485 ).
We conclude, however, that the court properly admitted the Molineux evidence pursuant to the remaining grounds upon which it relied, i.e., to establish defendant's intent and motive, and to complete the narrative, with respect to the crime herein. Along with the other elements of the crime herein, the People were required to prove beyond a reasonable doubt that defendant intended to steal property (see Penal Law § 160.15 ; People v. De Jesus, 123 A.D.2d 563, 564, 507 N.Y.S.2d 144, lv. denied 69 N.Y.2d 745, 512 N.Y.S.2d 1049, 505 N.E.2d 247 ; see generally People v. Starks, 46 A.D.3d 1426, 1427, 848 N.Y.S.2d 467, lv. denied 10 N.Y.3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815 ; People v. Osinowo, 28 A.D.3d 1011, 1012–1013, 813 N.Y.S.2d 283, lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 ). Contrary to defendant's contention, the court properly admitted evidence that defendant stole property during the Weedsport robbery as evidence that he intended to steal property during the crime herein. It has long been settled that the Molineux rule contains an “exception thereto[ ] that permits such evidence when ‘the transactions in respect to which evidence was given were all intimately connected in point of time, place[,] and circumstance with that for which the accused was indicted, so that they formed a continuous series of transactions, each throwing light upon the other, upon the question of knowledge, intent, and motive’ ” (People v. Friedman, 149 App.Div. 873, 875, 134 N.Y.S. 153 ). Here, the jury could conclude, based upon the evidence that the Weedsport robbery occurred shortly after the DeWitt attempted robbery, that defendant was engaged in “a continuous series of transactions” (id. ), pursuant to which he first attempted to rob the hotel in DeWitt and, having failed to obtain money during that crime, continued his criminal efforts until he was successful in the Weedsport robbery. Furthermore, the “ probative and explanatory value [of the Molineux evidence] clearly outweighed the potential prejudice to defendant, particularly since the later incident can readily be viewed as a continuation of the” crime herein (People v. Tarver, 2 A.D.3d 968, 969, 768 N.Y.S.2d 391 ). Thus, the evidence that defendant committed another robbery a short time after this unsuccessful attempt was admissible to show his intent and motive to commit this crime (see generally People v. Burnell, 89 A.D.3d 1118, 1120–1121, 931 N.Y.S.2d 776, lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 ).
The court also properly admitted the Molineux evidence to complete the narrative of the crime herein and to provide necessary background information for it. Absent the Molineux evidence, the jury would have been left to speculate why defendant was stopped on the Thruway about five exits away from the scene of the crime herein and over an hour later, in a vaguely described vehicle, wearing different clothing than either the clerk or the witness described defendant as wearing, and possessing $225 in cash. Thus, the Molineux evidence was properly admitted to explain the reason for the stop (see People v. Radoncic, 259 A.D.2d 428, 428, 687 N.Y.S.2d 141, lv. denied 93 N.Y.2d 1005, 695 N.Y.S.2d 751, 717 N.E.2d 1088 ; People v. Hernandez, 139 A.D.2d 472, 477, 527 N.Y.S.2d 404, lv. denied 72 N.Y.2d 957, 534 N.Y.S.2d 671, 531 N.E.2d 303 ), and to “provide background information as to how and why the police pursued and confronted defendant” (People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ; cf. People v. Resek, 3 N.Y.3d 385, 388–390, 787 N.Y.S.2d 683, 821 N.E.2d 108 ; see generally Till, 87 N.Y.2d at 836–837, 637 N.Y.S.2d 681, 661 N.E.2d 153 ). In addition, the evidence of the Weedsport robbery occurring between the time of the crime herein and the time of the Thruway stop of defendant, coupled with the additional clothing items found in his car, explained how defendant was arrested in a different shirt than the one he wore during the crime herein, “provided a complete and coherent narrative of the events leading to defendant's arrest” (People v. Antegua, 7 A.D.3d 466, 467, 777 N.Y.S.2d 477, lv. denied 3 N.Y.3d 670, 784 N.Y.S.2d 8, 817 N.E.2d 826 ; see People v. Buchanan, 95 A.D.3d 1433, 1436, 944 N.Y.S.2d 378, lv. denied 22 N.Y.3d 1039, 981 N.Y.S.2d 373, 4 N.E.3d 385 ), and was “inextricably interwoven with directly related material in the sense that it is explanatory of the acts done” in the crime charged in the indictment (People v. Johnson, 149 A.D.2d 930, 931, 540 N.Y.S.2d 64, lv. denied 73 N.Y.2d 1017, 541 N.Y.S.2d 771, 539 N.E.2d 599 [internal quotation marks omitted]; see People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88 ; People v. Ventimiglia, 52 N.Y.2d 350, 361, 438 N.Y.S.2d 261, 420 N.E.2d 59 ; People v. Williams, 28 A.D.3d 1005, 1008, 814 N.Y.S.2d 353, lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 ).
Furthermore, defense counsel argued at trial that the evidence, most notably the video recording, demonstrated that defendant committed only the crime of menacing. Therefore, especially after “[c]onsidering the defense position that defendant [did not intend to steal property, we conclude that] the Molineux evidence fell within recognized exceptions and its probative value to the People's case outweighed its prejudice to defendant” (People v. Smith, 63 A.D.3d 1301, 1303, 880 N.Y.S.2d 760, lv. denied 13 N.Y.3d 862, 891 N.Y.S.2d 697, 920 N.E.2d 102 ; see People v. Bradford, 118 A.D.3d 1254, 1256, 987 N.Y.S.2d 727, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ; People v. Brown, 57 A.D.3d 1461, 1463, 871 N.Y.S.2d 540, lv. denied 12 N.Y.3d 814, 881 N.Y.S.2d 22, 908 N.E.2d 930, reconsideration denied 12 N.Y.3d 923, 884 N.Y.S.2d 705, 912 N.E.2d 1086 ). Thus, “[w]e cannot say that the trial court abused its discretion when it allowed ... evidence of [subsequent] conduct relating to [the crime herein] and gave proper limiting instructions to the jury” (People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ).
We reject defendant's contention that the court erred in denying his requests for substitution of his second assigned counsel. It is well settled that a court must carefully evaluate serious complaints about counsel, and “should substitute counsel when a defendant can demonstrate ‘good cause’ ” therefor (People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 ). Defendant's requests to replace the second assigned counsel were based on counsel's alleged failure to file certain motions and on frequent disagreements with defendant. We conclude that, “[a]t most, defendant's allegations evinced disagreements with counsel over strategy ..., which were not sufficient grounds for substitution” (People v. Agard, 107 A.D.3d 613, 613, 968 N.Y.S.2d 479, lv. denied 21 N.Y.3d 1039, 972 N.Y.S.2d 537, 995 N.E.2d 853 ; see Linares, 2 N.Y.3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ). Contrary to his further contention, “the court made a sufficient inquiry into defendant's complaints concerning the alleged lack of communication between defendant and defense counsel. The court ‘repeatedly allowed defendant to air his concerns about defense counsel, and after listening to them reasonably concluded that defendant's vague and generic objections had no merit or substance’ ” (People v. Reese, 23 A.D.3d 1034, 1035, 803 N.Y.S.2d 852, lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 347, 844 N.E.2d 802, quoting Linares, 2 N.Y.3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ), and thus defendant's objections were insufficient to demonstrate “ ‘good cause’ ” for substitution of counsel (Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 ). To the extent that there was a hostile relationship between defendant and counsel, we conclude that defendant was the source of that hostility, and that such hostility was “ unjustified ... and ... did not require substitution” (People v. Walton, 14 A.D.3d 419, 420, 788 N.Y.S.2d 107, lv. denied 5 N.Y.3d 796, 801 N.Y.S.2d 816, 835 N.E.2d 676 ).
Contrary to defendant's further contention, the court did not abuse its discretion in denying his request to proceed pro se. Defendant's request to represent himself was not clear and unequivocal. Rather, his request was made in the alternative to his frequent and unsupported requests for substitution of assigned counsel. Thus, the court did not abuse its discretion in denying those requests (see People v. Wilson, 112 A.D.3d 1317, 1318, 977 N.Y.S.2d 515, lv. denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 ; cf. People v. Slaughter, 78 N.Y.2d 485, 491–492, 577 N.Y.S.2d 206, 583 N.E.2d 919 ; see generally Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 384–385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ).
Contrary to defendant's further contention, the evidence viewed in the light most favorable to the prosecution is legally sufficient to support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Foster, 64 N.Y.2d 1144, 1146, 490 N.Y.S.2d 726, 480 N.E.2d 340, cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137 ; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ). Furthermore, viewing the evidence in light of the elements of the crime 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 ), we reject defendant's further 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 ).
Defendant failed to preserve for our review his contention that the prosecutor's stated reasons for striking a prospective juror in response to a Batson challenge were pretextual, inasmuch as he “failed to articulate [to the court] any reason why he believed that the prosecutor's explanations were pretextual” (People v. Santiago, 272 A.D.2d 418, 418, 707 N.Y.S.2d 906, lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 648, 739 N.E.2d 1153 ; see People v. Smocum, 99 N.Y.2d 418, 423–424, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). In any event, that contention lacks merit. “The court was in the best position to observe the demeanor of the prospective juror[ ] and the prosecutor, and its determination that the prosecutor's reasons for exercising peremptory challenges with respect to [the] ... prospective juror[ ] were race-neutral and not pretextual is entitled to great deference” (People v. Williams, 13 A.D.3d 1214, 1215, 786 N.Y.S.2d 684, lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 ; see People v. Carter, 38 A.D.3d 1256, 1256–1257, 834 N.Y.S.2d 886, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 486, 869 N.E.2d 662 ).
Defendant failed to preserve for our review his additional contention that he was penalized for rejecting a plea offer and exercising his right to a jury trial (see People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813, lv. denied 18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294 ; People v. Griffin, 48 A.D.3d 1233, 1236–1237, 851 N.Y.S.2d 808, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86 ). In any event, that contention is without merit (see Stubinger, 87 A.D.3d at 1317, 929 N.Y.S.2d 813 ), and the sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions in his main and pro se supplemental briefs and conclude that none warrant reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.