Opinion
29 KA 14–00660
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Marquis R. MCMILLIAN, also known as John Doe/"Dap", Defendant–Appellant. (Appeal No. 1.)
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:In appeal No. 1 of these consolidated appeals, defendant appeals from a judgment convicting him, following a bench trial, of assault in the first degree ( Penal Law § 120.10[1] ), and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), arising from an incident in which he shot a man who was sitting on a stopped motorcycle while speaking with two people. In appeal No. 2, he appeals from a judgment convicting him, following the same bench trial, of attempted murder in the second degree (§§ 110.00, 125.25[1] ), assault in the first degree ( § 120.10 [1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), arising from an incident in which he fired nine shots into a stopped vehicle in which the two people who witnessed the first incident were sitting, seriously injuring one of them.
In both appeals, defendant contends that he was deprived of a fair trial by the prosecutor's failure to disclose Brady material pursuant to defendant's pretrial demands. The record from the trial establishes that a witness was told that federal prosecutors did not wish to charge him with any drug dealing that the witness conducted, but wished only to hear the truth regarding this incident. Initially, we reject the People's contention that no Brady violation occurred because no specific promise of leniency was made, inasmuch as the record establishes that the witness believed that he would not be charged with certain criminal activity if he testified against defendant (see Giglio v. United States , 405 U.S. 150, 154–156, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ). Nevertheless, it is well settled that, although " ‘the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witness[ ]" ( People v. Cortijo , 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ; see generally People v. Hines , 132 A.D.3d 1385, 1386, 17 N.Y.S.3d 551 [4th Dept. 2015], lv denied 26 N.Y.3d 1109, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ).
Defendant objected solely on speculation grounds when the prosecutor elicited testimony from a police investigator, and defendant therefore failed to preserve for our review his contention that "the testimony of [that investigator] interpreting recorded telephone conversations between defendant and other individuals invaded the province of the jury" ( People v. Martinez , 39 A.D.3d 1246, 1247, 834 N.Y.S.2d 599 [4th Dept. 2007], lv denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Contrary to defendant's contention, County Court properly admitted recordings of telephone calls that he made from the jail in which he asked to have an associate obtain the weapon used in the shooting and dispose of it, and then expressed his dismay that another associate had been apprehended with the weapon. Those recordings were properly admitted over defendant's hearsay objection inasmuch as "they reflected his consciousness of guilt" ( People v. Moore , 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 [2d Dept. 2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; see People v. Voymas , 39 A.D.3d 1182, 1184, 833 N.Y.S.2d 823 [4th Dept. 2007], lv denied 9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892 [2007] ).
Contrary to defendant's further contention, we conclude that the evidence, when 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 establish defendant's identity, and thus to support the conviction of the crimes charged (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 in this nonjury trial (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 (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" ( People v. Van Akin , 197 A.D.2d 845, 845, 602 N.Y.S.2d 450 [4th Dept. 1993] ), and we see no basis to reject the court's credibility and weight determinations here.
We reject defendant's contention that the court erred in refusing to allow him to withdraw his waiver of the right to a jury trial. The record establishes that, one week prior to trial, after indicating for several weeks that he wished to waive a jury trial, defendant elected to proceed without a jury and executed a waiver of that right after a thorough inquiry by the court. On the day of trial, the court received defendant's request to vacate that waiver. Particularly in light of the lack of any cognizable basis for the request, we cannot conclude that the court abused its discretion in denying it (see People v. McQueen , 52 N.Y.2d 1025, 1025–1026, 438 N.Y.S.2d 299, 420 N.E.2d 97 [1981] ). We reject defendant's further contention that reversal is required based on ineffective assistance of counsel regarding defendant's motion to revoke his waiver of a jury trial. The record establishes that defense counsel was "afforded the opportunity to explain his performance with respect to the [waiver] ..., but [did] not take a position on the motion that [was] adverse to the defendant" ( People v. Mitchell , 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ).
In appeal No. 2, defendant contends that the court erred in denying his request to consider attempted assault in the second degree ( Penal Law §§ 110.00, 120.05[1] ) as a lesser included offense of attempted murder in the second degree. We conclude that the court properly denied that request. Viewed in the light most favorable to defendant, there was "no ‘reasonable view of the evidence ... that would support a finding that [defendant] committed the lesser offense but not the greater’ " with respect to that incident ( People v. Hymes , 70 A.D.3d 1371, 1373, 895 N.Y.S.2d 273 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010], quoting People v. Glover , 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ; cf. People v. Cabassa , 79 N.Y.2d 722, 728–730, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992] ).
Finally, although not raised by defendant, we conclude in appeal No. 2 that the court erred in directing that the periods of postrelease supervision run consecutively to the periods of postrelease supervision imposed in appeal No. 1 (see People v. Allard , 107 A.D.3d 1379, 1379, 966 N.Y.S.2d 625 [4th Dept. 2013] ). " Penal Law § 70.45(5)(c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term" ( id. ; see People v. Hollis , 147 A.D.3d 1505, 1506, 46 N.Y.S.3d 467 [4th Dept. 2017], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ). We cannot allow an illegal sentence to stand (see People v. Johnson , 136 A.D.3d 1338, 1340, 25 N.Y.S.3d 474 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; Allard , 107 A.D.3d at 1379, 966 N.Y.S.2d 625 ), and we therefore modify the judgment in appeal No. 2 accordingly.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.