Opinion
1016 KA 16–01190
11-09-2018
The PEOPLE of the State of New York, Respondent, v. Lee THOMAS, Defendant–Appellant.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS, THE ABBATOY LAW FIRM, PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL CALARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS, THE ABBATOY LAW FIRM, PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL CALARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, 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, inter alia, murder in the second degree ( Penal Law § 125.25[1] ) and attempted murder in the second degree ( §§ 110.00, 125.25[1] ), arising from an incident at defendant's residence in which he fired a shotgun multiple times at two men, which resulted in the death of one of the men (hereafter, victim). We affirm.
Contrary to defendant's contention, we conclude that County Court properly refused to suppress physical evidence that was seized without a warrant from the driveway of defendant's residence inasmuch as that evidence was in plain view upon arrival of the police on the scene following a 911 call reporting the shooting (see People v. Jassan J. , 84 A.D.3d 620, 620, 923 N.Y.S.2d 102 [1st Dept. 2011], lv denied 18 N.Y.3d 925, 942 N.Y.S.2d 464, 965 N.E.2d 966 [2012] ; People v. Evans , 21 A.D.3d 1317, 1317–1318, 801 N.Y.S.2d 462 [4th Dept. 2005], lv denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797 [2006] ; see generally People v. Brown , 96 N.Y.2d 80, 89, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ).
Defendant also contends that the court erred in refusing to suppress the statements that he made to the police at his residence before he received his Miranda warnings because he was subjected to custodial interrogation. We reject that contention. "In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ " ( People v. Kelley , 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012], quoting People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). Here, the record of the suppression hearing establishes that the police responded to defendant's residence following the 911 call reporting the shooting and, although defendant was initially asked to back up into the kitchen, the police explained that they simply wanted to be able to safely enter the residence and check the premises. Thereafter, a police officer collectively interviewed defendant, his girlfriend, and two roommates in the kitchen of the residence, defendant was never handcuffed or otherwise restrained, and defendant was free to move during the interview (see People v. Rodriguez , 111 A.D.3d 1333, 1333–1334, 974 N.Y.S.2d 827 [4th Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; People v. Ramirez , 243 A.D.2d 734, 735, 663 N.Y.S.2d 855 [2d Dept. 1997], lv denied 691 N.E.2d 649, 668 N.Y.S.2d 577, 91 N.Y.2d 878 [1997], reconsideration denied 693 N.E.2d 758, 670 N.Y.S.2d 411, 91 N.Y.2d 929 [1998]; People v. Lavere , 236 A.D.2d 809, 809, 654 N.Y.S.2d 61 [4th Dept. 1997], lv denied 90 N.Y.2d 860, 661 N.Y.S.2d 187, 683 N.E.2d 1061 [1997] ). Furthermore, although a police officer testified that he would not have allowed defendant to leave upon initially entering the residence, "[a] police [officer's] unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time ... [and] the subjective intent of the officer ... is irrelevant" where, as here, there is no evidence that such subjective intent was communicated to the defendant ( People v. Jeremiah , 147 A.D.3d 1199, 1201, 47 N.Y.S.3d 490 [3d Dept. 2017], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] [internal quotation marks omitted] ). We conclude that, under those circumstances, "a reasonable person innocent of any wrongdoing would not have believed that he or she was in custody" ( Rodriguez , 111 A.D.3d at 1334, 974 N.Y.S.2d 827 ).
Contrary to defendant's further contention, inasmuch as "the initial statement[s were] not the product of pre- Miranda custodial interrogation, the post- Miranda [statements] given by defendant [at the police station] cannot be considered the fruit of the poisonous tree" ( People v. Murphy , 43 A.D.3d 1276, 1277, 842 N.Y.S.2d 839 [4th Dept. 2007], lv denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] [internal quotation marks omitted] ). Thus, defendant's related contention that defense counsel was ineffective in failing to raise that ground for suppression of the post- Miranda statements is without merit because "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success" ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [internal quotation marks omitted] ).
Upon our review of the videotape of defendant's interrogation at the police station, we conclude that the court properly refused to suppress defendant's written and oral statements made during the interrogation because, contrary to defendant's contention, the record does not establish that those statements were involuntary (see People v. Clark , 139 A.D.3d 1368, 1369–1370, 31 N.Y.S.3d 357 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016] ; People v. Salamone , 61 A.D.3d 1400, 1401, 876 N.Y.S.2d 809 [4th Dept. 2009], lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009] ; People v. McWilliams , 48 A.D.3d 1266, 1267, 852 N.Y.S.2d 523 [4th Dept. 2008], lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008] ; cf. People v. Guilford , 21 N.Y.3d 205, 212–213, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013] ).
Defendant also contends that he was deprived of his constitutional right to a public hearing when the court denied his request to view the videotape of the interrogation in open court during the suppression hearing and instead viewed it in chambers before rendering its written decision. That contention is not preserved for our review inasmuch as defendant requested that the court view the videotape in open court on "different grounds, and the court ‘did not expressly decide, in response to protest, the issue[ ] now raised on appeal’ ..., notwithstanding its ‘mere reference’ [during argument] ... to a matter related to the present issue[ ]" ( People v. Cruz , 154 A.D.3d 429, 429–430, 62 N.Y.S.3d 100 [1st Dept. 2017], lv denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017], quoting People v. Miranda , 27 N.Y.3d 931, 932–933, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ; see CPL 470.05[2] ; People v. Lopez , 185 A.D.2d 189, 190–191, 585 N.Y.S.2d 764 [1st Dept. 1992], lv denied 80 N.Y.2d 975, 591 N.Y.S.2d 144, 605 N.E.2d 880 [1992] ). 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] ).
Defendant further contends that the court erred in denying his challenge for cause to a prospective juror. Although defendant preserved that contention for our review (see CPL 270.20[2] ; People v. Harris , 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ), we conclude that it lacks merit. "A prospective juror may be challenged for cause on several grounds" ( People v. Furey , 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011] ), including, as relevant here, that the prospective juror "bears some ... relationship to [counsel for the People or for the defendant] of such nature that it is likely to preclude him [or her] from rendering an impartial verdict" ( CPL 270.20[1][c] ; see People v. Scott , 16 N.Y.3d 589, 592–593, 595, 925 N.Y.S.2d 384, 949 N.E.2d 475 [2011] ; People v. Collins , 145 A.D.3d 1479, 1479–1480, 44 N.Y.S.3d 830 [4th Dept. 2016] ). "[N]ot all relationships, particularly professional ones, between a prospective juror and relevant persons, including counsel for either side, require disqualification for cause as a matter of law" ( People v. Greenfield , 112 A.D.3d 1226, 1228, 977 N.Y.S.2d 486 [3d Dept. 2013], lv denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ; see Furey , 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ). "Trial courts are directed to look at myriad factors surrounding the particular relationship in issue, such as the frequency, recency or currency of the contact, whether it was direct contact, and the nature of the relationship as personal and/or professional ... or merely ‘a nodding acquaintance’ " ( Greenfield , 112 A.D.3d at 1228–1229, 977 N.Y.S.2d 486, quoting People v. Provenzano , 50 N.Y.2d 420, 425, 429 N.Y.S.2d 562, 407 N.E.2d 408 [1980] ; see Furey , 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ).
Here, the information before the court established, at most, that there was an occasional, professional relationship between defense counsel and the prospective juror, who worked primarily in legal publishing, arising from defense counsel's position on a school board that had limited control over some portion of the prospective juror's secondary, part-time paid employment and partial volunteer work in the school district's theater program. The record thus establishes that the relationship was "not [a] particularly close one [and] arose in a professional context[,] and [was] thus not of a type [likely] to preclude [the] prospective juror from rendering an impartial verdict" ( People v. Molano , 70 A.D.3d 1172, 1174, 894 N.Y.S.2d 589 [3d Dept. 2010], lv denied 15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ; see People v. DeFreitas , 116 A.D.3d 1078, 1080, 984 N.Y.S.2d 423 [3d Dept. 2014], lv denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ; cf. Greenfield , 112 A.D.3d at 1229–1230, 977 N.Y.S.2d 486 ). Contrary to defendant's related contention, we also conclude that the court, in reaching its determination to deny the challenge for cause, did not violate its obligation to try and determine "[a]ll issues of fact or law arising on the challenge" ( CPL 270.20[2] ; cf. People v. Guldi , 152 A.D.3d 540, 543, 59 N.Y.S.3d 385 [2d Dept. 2017], lv denied 93 N.E.3d 1216, 70 N.Y.S.3d 452, 30 N.Y.3d 1019 [2017] ).
Contrary to defendant's additional contention, the court did not deny him the expert judgment of counsel, to which the Sixth Amendment entitles him (see People v. Colville , 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 [2012] ), when it elicited defendant's personal consent to confirm that he was in agreement with the position taken by defense counsel that a seated juror should be discharged. The record refutes defendant's contention "that the decision ... was made solely in deference to defendant, that it was against the advice of [defense] counsel, or that it was inconsistent with defense counsel's trial strategy" ( People v. Gottsche , 118 A.D.3d 1303, 1304, 987 N.Y.S.2d 736 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ; see People v. Richardson , 143 A.D.3d 1252, 1254–1255, 38 N.Y.S.3d 674 [4th Dept. 2016], lv denied 28 NY3d 1150, 74 N.E.3d 686 [2017] ; People v. Black , 137 A.D.3d 1679, 1679–1680, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ).
Defendant contends that the court erred in denying his motion to exclude from the courtroom during opening statements any of the People's witnesses who may have been present. Although the decision to exclude a witness from the courtroom prior to his or her testimony is within the discretion of the trial court (see People v. Baker , 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ), "the practice of such exclusion ‘is a time-honored one and should not be abandoned’ ..., ‘particularly where the testimony of the witness[ ] is in any measure cumulative or corroborative’ " ( People v. Felder , 39 A.D.2d 373, 380, 334 N.Y.S.2d 992 [2d Dept. 1972], affd 32 N.Y.2d 747, 344 N.Y.S.2d 643, 297 N.E.2d 522 [1973], rearg denied 39 N.Y.2d 743, 384 N.Y.S.2d 1029, 349 N.E.2d 892 [1976], appeal dismissed 414 U.S. 948, 94 S.Ct. 299, 38 L.Ed.2d 204 [1973] ; see People v. Cooke , 292 N.Y. 185, 190–191, 54 N.E.2d 357 [1944], rearg denied 292 N.Y. 622, 55 N.E.2d 380 [1944] ). Even assuming, arguendo, that the court should have excluded any of the People's witnesses from the courtroom during opening statements in order to prevent such witnesses from learning about the expected testimony of other witnesses (see generally People v. Santana , 80 N.Y.2d 92, 100, 587 N.Y.S.2d 570, 600 N.E.2d 201 [1992], rearg dismissed 81 N.Y.2d 1008, 599 N.Y.S.2d 806, 616 N.E.2d 161 [1993] ), we conclude that reversal is not warranted because defendant has failed to demonstrate any prejudice resulting from the presence of the only witness specified on the record as being in the courtroom during opening statements, i.e., an investigator who was not an eyewitness to the shooting and merely collected evidence from the scene (see People v. Todd , 306 A.D.2d 504, 504, 761 N.Y.S.2d 312 [2d Dept. 2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ; People v. Leggett , 55 A.D.2d 990, 991, 391 N.Y.S.2d 195 [3d Dept. 1977] ; People v. M. J. , 42 A.D.2d 717, 717, ––– N.Y.S.3d –––– [2d Dept. 1973] ; Felder , 39 A.D.2d at 380, 334 N.Y.S.2d 992 ).
We reject defendant's contention that the court erred in refusing to charge the jury with one of his requested justification defenses. Viewing the record in the light most favorable to defendant, we conclude that there is no reasonable view of the evidence from which the jury could have found that defendant reasonably believed that the victim was committing or attempting to commit a kidnapping of defendant's girlfriend (see Penal Law § 35.15[2][b] ; see generally People v. Petty , 7 N.Y.3d 277, 284–285, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ; People v. Sadler , 153 A.D.3d 1285, 1286, 59 N.Y.S.3d 710 [2d Dept. 2017], lv denied 30 N.Y.3d 1022, 70 N.Y.S.3d 455, 93 N.E.3d 1218 [2017] ).
Finally, the sentence is not unduly harsh or severe.