Opinion
558 KA 19-01416
08-26-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY MOSES, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered May 3, 2019. The judgment convicted defendant upon a jury verdict of assault in the first degree and criminal possession of a weapon in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). We affirm.
Initially, defendant contends that, during deliberations, Supreme Court failed to provide a meaningful response to a note from the jury with respect to the justification defense. Under the circumstances here, we conclude that the court did not abuse its discretion in the manner in which it responded to the jury note (see People v Santi, 3 N.Y.3d 234, 248-249 [2004]; People v Malloy, 55 N.Y.2d 296, 302-304 [1982], cert denied 459 U.S. 847 [1982]; People v Abdul-Jaleel, 142 A.D.3d 1296, 1298 [4th Dept 2016], lv denied 29 N.Y.3d 946 [2017]; People v Mobley, 118 A.D.3d 1339, 1340 [4th Dept 2014], lv denied 24 N.Y.3d 1121 [2015]).
We also reject defendant's contention that the People impaired the integrity of the grand jury proceedings by failing to charge the grand jury with the defense of justification, failing to present exculpatory evidence, and allowing the victim to provide false testimony. Concerning the failure to instruct the grand jury with respect to justification, we note that "[t]here is no requirement that the [g]rand [j]ury must be charged with every potential defense suggested in evidence," and the People are required to charge "only those defenses that the evidence will reasonably support" (People v Angona, 119 A.D.3d 1406, 1407 [4th Dept 2014], lv denied 25 N.Y.3d 987 [2015] [internal quotation marks omitted]). Here, we conclude the testimony before the grand jury did not support the theory that defendant was legally justified in stabbing the victim-i.e., there was insufficient evidence before the grand jury that the victim was committing or attempting to commit a burglary at the time of the stabbing (see Penal Law § 35.20 [3]; People v Mitchell, 82 N.Y.2d 509, 514-515 [1993]; People v Almeida, 128 A.D.3d 1451, 1451 [4th Dept 2015], lv denied 26 N.Y.3d 1006 [2015]).
We also reject the contention that the People failed to provide the grand jury with certain exculpatory evidence. "[T]he People maintain broad discretion in presenting their case to the grand jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (Mitchell, 82 N.Y.2d at 515). Thus, the People were not obligated to provide the grand jury with the exculpatory portions of defendant's statements to the police, especially because they did not provide the grand jury with any inculpatory portions of those statements-indeed, they provided the grand jury with no portion of those statements (see People v Morel, 131 A.D.3d 855, 859-860 [4th Dept 2015], lv denied 26 N.Y.3d 1147 [2016]; Almeida, 128 A.D.3d at 1451; People v Falcon, 204 A.D.2d 181, 181-182 [1st Dept 1994], lv denied 84 N.Y.2d 825 [1994]). We further reject the contention that the People presented false testimony by the victim to the grand jury. The testimony in question, which pertained to the injuries that the victim sustained during the stabbing, was corroborated by the 185-page certified medical record also submitted by the People to the grand jury.
Defendant's contention that the evidence is legally insufficient to support the conviction of assault in the first degree with respect to the elements of intent and serious physical injury is unpreserved because defendant did not specifically raise those issues in his motion for a trial order of dismissal (see People v Gray, 86 N.Y.2d 10, 19 [1995]; People v Snyder, 100 A.D.3d 1367, 1367-1368 [4th Dept 2012], lv denied 21 N.Y.3d 1010 [2013]). He did preserve, however, his sufficiency contention with respect to the defense of justification by raising it in his motion for a trial order of dismissal, which he renewed at the close of his own case (see People v Hines, 97 N.Y.2d 56, 61-62 [2001], rearg denied 97 N.Y.2d 678 [2001]). Nevertheless, that contention is without merit because, viewed in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), the victim's testimony that he had not attacked defendant or entered his room provided a valid line of reasoning and permissible inferences from which a rational jury could conclude that defendant was not justified to use deadly force to prevent or terminate a burglary (see Penal Law § 35.15; People v Lermineau, 224 A.D.2d 985, 985 [4th Dept 1996], lv denied 88 N.Y.2d 850 [1996]; see generally People v Danielson, 9 N.Y.3d 342, 349 [2007]).
We further conclude that, viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349), the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude the jury did not fail to give the evidence the weight it should be accorded (see id.). "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" (People v Streeter, 118 A.D.3d 1287, 1288 [4th Dept 2014], lv denied 23 N.Y.3d 1068 [2014], reconsideration denied 24 N.Y.3d 1047 [2014] [internal quotation marks omitted]). "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 [4th Dept 2019]).
Defendant contends that the prosecutor's remarks during summation about the blood evidence were improper because they were not supported by expert testimony. We reject that contention because the prosecutor's remarks constituted "fair comment" on the evidence at trial, and any impropriety was not "so egregious as to deprive defendant of a fair trial" (People v Santiago, 101 A.D.3d 1715, 1716, 1717 [4th Dept 2012], lv denied 21 N.Y.3d 946 [2013] [internal quotation marks omitted]). Moreover, an expert witness is not necessary to opine on the blood evidence, where, as here, it was within the ken of a typical juror to make a determination and reasonable inferences with respect to the source and location of the blood found at the crime scene (see People v Mortillaro, 143 A.D.2d 148, 149-150 [2d Dept 1988], lv denied 73 N.Y.2d 788 [1988]; see generally Santi, 3 N.Y.3d at 246-247).
Additionally, we conclude that the court properly precluded defense counsel from eliciting defendant's alleged exculpatory statements during the testimony of a police officer because the statements were "self-serving" and "constituted inadmissible hearsay" (People v Hill, 281 A.D.2d 917, 918 [4th Dept 2001], lv denied 96 N.Y.2d 902 [2001]; see People v Weston, 249 A.D.2d 496, 496 [2d Dept 1998], lv denied 92 N.Y.2d 931 [1998]).
Defendant failed to preserve for our review his contention that the court, "in determining the sentence to be imposed, penalized [him] for exercising [his] right to a... trial" (People v Garner, 136 A.D.3d 1374, 1374 [4th Dept 2016], lv denied 27 N.Y.3d 997 [2016]; see People v Coapman, 90 A.D.3d 1681, 1683-1684 [4th Dept 2011], lv denied 18 N.Y.3d 956 [2012]). In any event, that contention is without merit. "[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting [his] right to trial," and there is no indication in the record before us that the court acted in a vindictive manner based on defendant's exercise of the right to a trial (Garner, 136 A.D.3d at 1374 [internal quotation marks omitted]).
Finally, the sentence is not unduly harsh or severe.