Opinion
1235 KA 01–01201
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Dennis TIMMONS, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. DENNIS TIMMONS, DEFENDANT–APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
DENNIS TIMMONS, DEFENDANT–APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On a prior appeal ( People v. Timmons, 299 A.D.2d 861, 750 N.Y.S.2d 395 [4th Dept. 2002], lv denied 99 N.Y.2d 585, 755 N.Y.S.2d 722, 785 N.E.2d 744 [2003] ), we affirmed the judgment convicting defendant upon a jury verdict of murder in the second degree ( Penal Law § 125.25[2] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., whether County Court (Sirkin, J.; hereafter, trial court) erred when it allegedly failed to comply with CPL 310.30 in regard to court exhibit 3, a note from the jury during its deliberations ( People v. Timmons, 142 A.D.3d 1400, 38 N.Y.S.3d 482 [4th Dept. 2016] ), and we vacated our prior order.
Upon our consideration of the appeal de novo ( People v. Timmons, 165 A.D.3d 1597, 84 N.Y.S.3d 662 [4th Dept. 2018] ), defendant contended that the trial court committed a mode of proceedings error by failing to provide defense counsel with meaningful notice of the specific content of the jury note requesting readbacks of the testimony of five witnesses, some of which the jury requested be provided in a particular order. We concluded that "the trial transcript indicate[d] that the [trial] court informed defense counsel of the existence of the note and most of its contents, but ‘there [was] no indication that the entire contents of the note were shared with counsel’ " ( id. at 1598, 84 N.Y.S.3d 662, quoting People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ). Rather, "the transcript reflect[ed] that the [trial] court initially paraphrased the note outside the presence of the jury and then read part of the note verbatim in the jury's presence, but in each instance the [trial] court entirely omitted any reference to the jury's request for the testimony of the medical examiner and for that witness's testimony to be read first" ( id. ). Nonetheless, upon taking judicial notice of our own records in the form of a court reporter's affidavit submitted by the People in opposition to defendant's motion for a writ of error coram nobis, we further concluded that the affidavit "indicate[d] that a stenographic error may have resulted in a transcript that [did] not accurately reflect whether the [trial] court read the entire content of the note verbatim in open court prior to responding to the jury" ( id. at 1599–1600, 84 N.Y.S.3d 662 ). We thus held the case, reserved decision, and remitted the matter to County Court (Renzi, J.; hereafter, hearing court) for the purpose of a reconstruction hearing regarding the alleged error in the transcript of the trial court's on-the-record reading of the jury note ( id. at 1600, 84 N.Y.S.3d 662 ).
During the reconstruction hearing, the court reporter testified that, upon review of her stenographic notes from the trial and other contemporaneous handwritten notes, she determined that she had inadvertently omitted portions of the trial court's reading of the jury note from the transcript. The court reporter thus prepared a revised transcript, which was admitted in evidence, reflecting that the trial court had, in fact, read the entire contents of the jury note both outside the presence of the jury and in the jury's presence, including the request for the testimony of the medical examiner and for that witness's testimony to be read first. The hearing court credited the court reporter's testimony and concluded that the revised transcript was a true and accurate record of what really happened at trial. We now affirm the judgment of conviction.
Defendant contends in his main and pro se supplemental briefs that the record does not support the hearing court's determination because the court reporter's testimony was not credible. We reject that contention. "Resolution of issues of credibility and the weight to be accorded to the evidence presented are primarily questions to be determined by the hearing court, which has the advantage of hearing and seeing the witnesses" ( People v. James, 221 A.D.2d 963, 963, 635 N.Y.S.2d 388 [4th Dept. 1995] ; see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ). Upon our review of the record of the reconstruction hearing, we perceive no basis to disturb the hearing court's credibility determination (see People v. Cohen, 12 A.D.3d 1134, 1135, 785 N.Y.S.2d 263 [4th Dept. 2004] ). We conclude that the People established by a preponderance of the evidence that the revised transcript accurately reflects the trial court's on-the-record reading of the jury note (see generally id. ).
Inasmuch as the revised transcript establishes that the trial court "complied with its core responsibility to give counsel meaningful notice of the jury[ ] note[,] ... no mode of proceedings error occurred, and counsel was required to object in order to preserve a claim of error for appellate review," which defense counsel failed to do here ( People v. Nealon, 26 N.Y.3d 152, 160, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ). In any event, the revised transcript establishes that the trial court complied with CPL 310.30 in accordance with the procedure set forth in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) ; see People v. Geroyianis, 96 A.D.3d 1641, 1643, 946 N.Y.S.2d 803 (4th Dept. 2012), lv denied 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 (2012), reconsideration denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 (2012). Defendant also failed to preserve for our review his contention that the trial court did not provide a meaningful response to the jury's request for readbacks of testimony (see People v. Morris, 27 N.Y.3d 1096, 1098, 36 N.Y.S.3d 52, 55 N.E.3d 1025 [2016] ), and the trial court's alleged failure does not constitute a mode of proceedings error for which preservation is not required (see People v. Mack, 27 N.Y.3d 534, 540–541, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016], rearg. denied 28 N.Y.3d 944, 38 N.Y.S.3d 513, 60 N.E.3d 407 [2016] ; People v. Newton, 147 A.D.3d 1463, 1464, 47 N.Y.S.3d 582 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ). 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 failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation inasmuch as he did not object to any alleged instances thereof (see People v. Black, 137 A.D.3d 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] ). In any event, we conclude that most of the alleged improprieties "were fair comment on the evidence and fair response to defense counsel's summation ... and, to the extent that the prosecutor made inappropriate remarks, ... they were ‘not so pervasive or egregious as to deny defendant a fair trial’ " ( People v. Edwards, 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). Contrary to defendant's related contention, inasmuch as he was not denied a fair trial by any alleged improper comments during the prosecutor's summation, we further conclude that " ‘defense counsel's failure to object to those [comments] does not constitute ineffective assistance of counsel’ " ( People v. Swan, 126 A.D.3d 1527, 1527, 4 N.Y.S.3d 462 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ; see Edwards, 159 A.D.3d at 1426, 73 N.Y.S.3d 323 ).
Defendant failed to preserve for our review his contention that the jury instructions and verdict sheet were erroneous (see People v. Bolling, 49 A.D.3d 1330, 1332, 853 N.Y.S.2d 803 [4th Dept. 2008] ; People v. Man Kwong Yeung, 216 A.D.2d 953, 953, 629 N.Y.S.2d 710 [4th Dept. 1995], lv denied 86 N.Y.2d 873, 635 N.Y.S.2d 955, 659 N.E.2d 778 [1995], reconsideration denied 88 N.Y.2d 967, 647 N.Y.S.2d 721, 670 N.E.2d 1353 [1996] ; see generally People v. Robinson, 88 N.Y.2d 1001, 1001–1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266 [1996] ). 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 reject defendant's related contention that defense counsel was ineffective for failing to object to the jury instructions and verdict sheet inasmuch as "[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] ; see generally Bolling, 49 A.D.3d at 1332, 853 N.Y.S.2d 803 ).
Finally, we conclude that the remaining contention in defendant's pro se supplemental brief is not properly before us (see People v. Wilson, 14 N.Y.3d 895, 897, 905 N.Y.S.2d 100, 931 N.E.2d 69 [2010] ; People v. Cameron, 209 A.D.2d 159, 160, 617 N.Y.S.2d 770 [1st Dept. 1994] ).