Opinion
694 KA 11-02605
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Artamion J. MOORE, Defendant-Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, CURRAN, 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 him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ), two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]), and criminal possession of a weapon in the third degree (§ 265.02 [1]). We previously held this case, reserved decision, and remitted the matter to County Court for a ruling on defendant's motion for a trial order of dismissal with respect to the weapon possession counts, on which the court had reserved decision but failed to rule ( People v. Moore , 147 A.D.3d 1548, 1548-1549, 48 N.Y.S.3d 567 [4th Dept. 2017] ). Upon remittal, the court denied the motion. Contrary to defendant's contention, we conclude that the conviction is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant's contention that the court erred in failing to discharge a juror who failed to timely appear in court at one point during the trial is unpreserved because defendant never moved to discharge that juror (see People v. Boyd , 175 A.D.3d 1030, 1032, 108 N.Y.S.3d 101 [4th Dept. 2019], lv denied 34 N.Y.3d 1015, 114 N.Y.S.3d 748, 138 N.E.3d 477 [2019] ; People v. Armstrong , 134 A.D.3d 1401, 1401, 21 N.Y.S.3d 655 [4th Dept. 2015], lv denied 27 N.Y.3d 962, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ). Indeed, when the court asked whether defendant was seeking a mistrial or disqualification of the juror in question, defense counsel responded in the negative. Consequently, "defendant ‘should not now be heard to complain’ of the court's failure to discharge the juror" ( People v. Phillips , 34 A.D.3d 1231, 1231, 823 N.Y.S.2d 802 [4th Dept. 2006], lv denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 [2007] ; see Armstrong , 134 A.D.3d at 1401, 21 N.Y.S.3d 655 ).
Defendant also contends that the verdict was tainted by two premature, and therefore coercive, Allen charges. Inasmuch as defendant did not raise any objection to the first of the two Allen charges that he challenges on appeal, his contention with respect to that charge is not preserved for our review (see People v. Gonzalez , 208 A.D.3d 981, 982, 172 N.Y.S.3d 787 [4th Dept. 2022], lv denied 39 N.Y.3d 940, 177 N.Y.S.3d 540, 198 N.E.3d 783 [2022] ), and 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] ). With respect to the second Allen charge, however, to which defendant did object, we conclude that it was not given prematurely because, at the time it was given by the court, the jury had been allowed to deliberate for approximately 10 hours and had sent a note to the court stating that they could not come to a verdict (see generally People v. Pagan , 45 N.Y.2d 725, 726-727, 408 N.Y.S.2d 473, 380 N.E.2d 299 [1978] ; People v. Sharff , 38 N.Y.2d 751, 752-753, 381 N.Y.S.2d 48, 343 N.E.2d 765 [1975] ; People v. Arguinzoni , 48 A.D.3d 1239, 1241-1242, 852 N.Y.S.2d 546 [4th Dept. 2008], lv denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ). Additionally, with respect to the substance of the second Allen charge, we conclude that, read as a whole, it "was ‘encouraging rather than coercive’ " ( People v. Colon , 173 A.D.3d 1704, 1706, 103 N.Y.S.3d 215 [4th Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 744, 133 N.E.3d 450 [2019], quoting People v. Ford , 78 N.Y.2d 878, 879, 573 N.Y.S.2d 442, 577 N.E.2d 1034 [1991] ). Indeed, we note that the second Allen charge essentially tracked the deadlock charge that appears in the Criminal Jury Instructions (see CJI2d[NY] Deadlock Charge; see generally Gonzalez , 208 A.D.3d at 983, 172 N.Y.S.3d 787 ).
Defendant also contends that the court failed to comply with the procedure for handling and responding to jury notes set forth in People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) with respect to Court Exhibit Nos. 6, 9, 11, and 15. Three of those jury notes—i.e., Court Exhibit Nos. 9, 11, and 15—were ministerial in nature, and therefore defendant failed to preserve his contention for our review when he failed to object to the court's handling of those notes at trial (see People v. Mays , 20 N.Y.3d 969, 971, 959 N.Y.S.2d 119, 982 N.E.2d 1252 [2012] ; People v. Cirino , 203 A.D.3d 1661, 1664-1665, 164 N.Y.S.3d 752 [4th Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 844, 193 N.E.3d 509 [2022] ; People v. Paul , 171 A.D.3d 1467, 1468, 99 N.Y.S.3d 529 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 681, 130 N.E.3d 1291 [2019], reconsideration denied 34 N.Y.3d 953, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 1151, 206 L.Ed.2d 203 [2020] ). With respect to the fourth note, Court Exhibit No. 6, wherein the jury requested an exhibit, we conclude that defendant waived any objection because he had previously consented to allowing court deputies to provide requested exhibits to the jury without court intervention (see People v. Williams , 21 N.Y.3d 932, 935, 969 N.Y.S.2d 421, 991 N.E.2d 195 [2013] ; People v. King , 56 A.D.3d 1193, 1194, 867 N.Y.S.2d 598 [4th Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ).
Additionally, defendant's contention that the court erred by failing to respond immediately to the jury notes is unpreserved for our review due to defendant's failure to object on that ground at trial (see People v. Ortiz , 1 A.D.3d 1017, 1018, 767 N.Y.S.2d 361 [4th Dept. 2003], lv denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289 [2004] ; see generally People v. Starling , 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ). 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] ). We also reject defendant's contention that the court erred in its response to a jury note requesting the readback of certain witness testimony. Here, in response to that note the court " ‘appropriately advised the jurors to narrow their request for readback’ " ( People v. Lack , 299 A.D.2d 872, 873, 752 N.Y.S.2d 176 [4th Dept. 2002], lv denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741 [2003] ).