Opinion
294 KA 16–01088
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Richard SPAGNUOLO, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DARIENN M. POWERS OF COUNSEL), FOR DEFENDANT–APPELLANT. RICHARD SPAGNUOLO, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DARIENN M. POWERS OF COUNSEL), FOR DEFENDANT–APPELLANT.
RICHARD SPAGNUOLO, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ; [3] ), defendant contends in his main brief that his attorney's failure to timely request a missing witness charge deprived him of effective assistance of counsel. We reject that contention. Defense counsel sought the missing witness charge at the conclusion of defendant's testimony. After initially denying the request as untimely, Supreme Court reviewed the merits of the application and adhered to its determination to deny the request. Insofar as he contends that defense counsel was ineffective in failing to seek the missing witness charge in a timely manner, we conclude that defendant "failed to establish the absence of a legitimate explanation for defense counsel's failure to do so" ( People v. Myers [appeal No. 1], 87 A.D.3d 826, 828, 928 N.Y.S.2d 407 [4th Dept. 2011], lv denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ).
We reject defendant's contention in his main brief that a timely request for the charge would have been successful. One of the two witnesses regarding whom defendant sought the missing witness charge was a codefendant, charged as defendant's accomplice, who pleaded guilty before defendant's trial. We have stated that a defendant is not entitled to a missing witness charge based on the People's failure to call his accomplice as a witness because an accomplice's testimony would have been "presumptively suspect ... or subject to impeachment detrimental to the People's case" ( People v. Parton, 26 A.D.3d 868, 869, 808 N.Y.S.2d 531 [4th Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] [internal quotation marks omitted]; see People v. Burton, 126 A.D.3d 1324, 1326, 5 N.Y.S.3d 750 [4th Dept. 2015], lv denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ), and we conclude that such is the case here as well. With respect to the other witness, defendant testified that the witness did not overhear the conversation that was at the heart of his request for a missing witness charge, and it is well settled that a "request for a missing witness charge is properly denied where, as here, the party requesting the charge does not establish that the witness could have been expected to testify concerning a material issue" ( People v. Williams, 13 A.D.3d 1173, 1174, 787 N.Y.S.2d 770 [4th Dept. 2004], lv denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005], reconsideration denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ; see People v. Williams, 163 A.D.3d 1422, 1423, 80 N.Y.S.3d 610 [4th Dept. 2018] ). With respect to the remainder of the events for which that potential witness was allegedly present, we conclude, based on the evidence in the record, that his testimony would have been " ‘trivial or cumulative’ " ( People v. Smith, 33 N.Y.3d 454, 104 N.Y.S.3d 572, 128 N.E.3d 649, 2019 N.Y. Slip Op. 04447, *3 [2019] ), and thus denial of defendant's request would have been proper. Therefore, with respect to both witnesses, " ‘[d]efense counsel's failure to [timely] request a missing witness charge did not constitute ineffective assistance of counsel [inasmuch as t]here was no indication that the witness[es] would have provided noncumulative testimony favorable to the People’ " ( People v. Gonzales, 145 A.D.3d 1432, 1433, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ). We further conclude that, "even if counsel erred [in submitting his request too late,] this mistake was not so egregious and prejudicial as to constitute one of the rare cases where a single error results in ineffectiveness" ( People v. McCauley, 162 A.D.3d 1307, 1310, 79 N.Y.S.3d 743 [3d Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] [internal quotation marks omitted]; see generally People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000] ; People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ).
In his pro se supplemental brief, defendant contends that the evidence is legally insufficient to support the conviction on the criminal possession of a weapon in the second degree counts because the People failed to establish that he acted with the requisite mental culpability for accomplice liability. Defendant failed to preserve that contention inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ " at the issue raised on appeal ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Ford, 148 A.D.3d 1656, 1657, 50 N.Y.S.3d 226 [4th Dept. 2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ). In any event, defendant's contention lacks merit (see People v. Zuhlke, 67 A.D.3d 1341, 1341, 890 N.Y.S.2d 231 [4th Dept. 2009], lv denied 14 N.Y.3d 774, 898 N.Y.S.2d 106, 925 N.E.2d 111 [2010] ).
Defendant further contends in his main brief that the verdict is against the weight of the evidence. 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 that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant presented his contention that the prosecution's witnesses were not credible to the jury, which rejected that argument, and it is well settled that "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( id. ). Contrary to defendant's contention, "even if a witness has an ‘unsavory and criminal background, and testifie[s] pursuant to a cooperation agreement,’ such facts 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] ; see People v. Golson, 93 A.D.3d 1218, 1219, 940 N.Y.S.2d 423 [4th Dept. 2012], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435 [2012] ; see also People v. Moore [appeal No. 2], 78 A.D.3d 1658, 1659–1660, 912 N.Y.S.2d 825 [4th Dept. 2010] ), and here we perceive no basis on which to reject the jury's credibility determinations.
Contrary to defendant's further contention in his main brief, the sentence is not unduly harsh or severe.