Opinion
1425 KA 01–01182
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Tajuan PAUL, Defendant–Appellant.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, two counts of murder in the second degree ( Penal Law § 125.25 [3 ] ). On a prior appeal, we modified the judgment with respect to the sentence and otherwise affirmed ( People v. Paul, 298 A.D.2d 849, 747 N.Y.S.2d 615 [4th Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel failed to raise an issue that may have merit—specifically, whether the Antommarchi waiver proffered by defendant's trial counsel was valid ( People v. Paul [Tajuan], 148 A.D.3d 1723, 49 N.Y.S.3d 324 [4th Dept. 2017] ), and we vacated our prior order. We now consider the appeal de novo.
We reject defendant's contention that his Antommarchi waiver, i.e., his waiver of the right to be present at sidebar conferences during jury selection (see People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ), was invalid. At the beginning of jury selection, County Court held a bench conference with counsel for defendant and counsel for the codefendant, at which defendant was not present. The court stated, "The record will reflect that [counsel for the codefendant and counsel for defendant] have indicated [that] they ... wish to waive their clients' presence at the bench." In response, defendant's counsel said, "That's correct."
"It is well settled that a defendant's attorney may waive [the Antommarchi ] right," which is what occurred here ( People v. Lewis, 140 A.D.3d 1593, 1594, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). Contrary to defendant's contention, "a court need not engage in any ‘pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel ... may nevertheless not know what he [or she] is doing’ " ( id., quoting People v. Francis, 38 N.Y.2d 150, 154, 379 N.Y.S.2d 21, 341 N.E.2d 540 [1975] ). Nor is it necessary for the waiver to occur in defendant's presence inasmuch as "a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion" ( People v. Flinn, 22 N.Y.3d 599, 602, 984 N.Y.S.2d 283, 7 N.E.3d 496 [2014], rearg. denied 23 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147 [2014] ). "To the extent defendant argues that his off-the-record conversations with counsel did not sufficiently apprise him of his rights, he relies on matters dehors the record and beyond review by this Court on direct appeal. Such claims are more appropriately considered on a CPL 440.10 motion" ( People v. Jackson, 29 N.Y.3d 18, 24, 52 N.Y.S.3d 63, 74 N.E.3d 302 [2017] ; see People v. Shegog, 32 A.D.3d 1289, 1290, 822 N.Y.S.2d 222 [4th Dept. 2006], lv denied 7 N.Y.3d 929, 827 N.Y.S.2d 697, 860 N.E.2d 999 [2006] ).
Defendant's additional contention that he was deprived of his right to be present at trial conflates the statutory Antommarchi rights with the constitutional rights protected by Parker warnings (see People v. Vargas, 88 N.Y.2d 363, 375–376, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ; People v. Sprowal, 84 N.Y.2d 113, 116–117, 615 N.Y.S.2d 328, 638 N.E.2d 973 [1994] ; see generally People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ), and is without merit because he was not deprived of his right to be present in the courtroom.
We reject defendant's contention that reversal is required based on alleged mode of proceedings errors with respect to the court's handling of certain jury notes. Two of the notes at issue, concerning a juror's request to meet privately with the judge, were ministerial in nature (see People v. Brito, 135 A.D.3d 627, 627–628, 24 N.Y.S.3d 59 [1st Dept. 2016], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ). "[T]he O'Rama procedure is not implicated [where, as here,] the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v. Nealon, 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; see People v. Williams, 142 A.D.3d 1360, 1362, 38 N.Y.S.3d 342 [4th Dept. 2016], lv denied 28 N.Y.3d 1128, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016] ). We thus conclude that "there was no O'Rama error requiring this Court to reverse the judgment" based on those notes ( People v. Hall, 156 A.D.3d 1475, 1476, 68 N.Y.S.3d 241 [4th Dept. 2017], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). Moreover, we note that even a ministerial response by the court was obviated by the fact that the second note at issue nullified the request contained in the first note (see People v. Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 [2d Dept. 2007], lv denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ). Because the rest of the jury notes in question were read into the record in the presence of counsel and the jury, the court "complied with its core responsibility to give counsel meaningful notice of the jury's notes ... [and, t]hus, no mode of proceedings error occurred" ( Nealon, 26 N.Y.3d at 160, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Consequently, defendant was required to object to preserve his contention that the court did not meaningfully respond to the relevant jury notes (see id. ; Williams, 142 A.D.3d at 1362, 38 N.Y.S.3d 342 ). Defendant failed to do so, and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant also contends that he was denied effective assistance of counsel by defense counsel's allegedly confusing presentation of alibi evidence. We reject that contention inasmuch as any possible confusion with respect to the date of the alibi was clarified on redirect examination and in defense counsel's summation (cf. People v. Jarvis, 113 A.D.3d 1058, 1060–1061, 978 N.Y.S.2d 522 [4th Dept. 2014], affd 25 N.Y.3d 968, 8 N.Y.S.3d 650, 31 N.E.3d 112 [2015] ). Defendant's remaining allegations of ineffective assistance of counsel lack merit. Defense counsel's alleged shortcomings resulted in little or no prejudice to defendant (see generally People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and the failure to make certain objections did not constitute ineffective assistance inasmuch as any such objection would have had little or no chance of success (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant's challenge to the court's alibi charge is unpreserved (see CPL 470.05[2] ; People v. Robinson, 142 A.D.3d 1302, 1304, 38 N.Y.S.3d 312 [4th Dept. 2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ). In any event, the charge, as a whole, was proper because it included numerous warnings that the People had the burden of disproving defendant's alibi beyond a reasonable doubt and that the burden of proof never shifted (see People v. Castrechino, 24 A.D.3d 1267, 1267–1268, 808 N.Y.S.2d 858 [4th Dept. 2005], lv denied 6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281 [2006] ). Defendant's remaining challenges to the court's jury instructions are unpreserved, and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Additionally, upon viewing the evidence in light of the elements of the crimes 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 reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The quality of the witnesses and the existence of cooperation agreements "merely raise credibility issues for the jury to resolve" ( People v. Barnes, 158 A.D.3d 1072, 1072, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ). Moreover, we are satisfied that the accomplice testimony was sufficiently corroborated (see People v. Smith, 150 A.D.3d 1664, 1665, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ; People v. Highsmith, 124 A.D.3d 1363, 1364, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ).
Defendant did not preserve his contentions that the jury was influenced by a potential prosecution witness, that certain counts were based on legally insufficient evidence, and that he was prejudiced by improper hearsay or bolstering testimony, and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
There is no merit to defendant's contention that the indictment should have been dismissed due to an inadequate grand jury notification. The People were under no obligation to serve a grand jury notice about charges that were not included in the felony complaint (see People v. Clark, 128 A.D.3d 1494, 1496, 8 N.Y.S.3d 820 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; People v. Thomas, 27 A.D.3d 292, 293, 811 N.Y.S.2d 369 [1st Dept. 2006], lv denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ).
Finally, given defendant's resentencing, we do not consider defendant's challenge relating to his sentence, and we dismiss the appeal from the judgment to that extent (see People v. Linder, 170 A.D.3d 1555, 95 N.Y.S.3d 681, 688–689 [4th Dept. 2019] ; People v. Haywood, 203 A.D.2d 966, 966, 612 N.Y.S.2d 1016 [4th Dept. 1994], lv denied 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760 [1994] ).