Opinion
Ind. No. 270/2012
10-14-2014
THE PEOPLE OF THE STATE OF NEW YORK v. RONALD WRIGHT, Defendant.
:
Defendant moves, pursuant to Criminal Procedure Law §§ 330.30(1), 440.10 and 290.10, to set aside the verdict and vacate his judgment of conviction rendered before this court on August 12, 2014. Defendant was convicted, upon a jury verdict, of Robbery in the Second Degree (P.L. § 160.10[1] (aided by another actually present) and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[3] (loaded and outside home or place of business). The jury acquitted defendant of Robbery in the First Degree (P.L. § 160.15[2]) (deadly weapon) and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[1][b]) (intent to use unlawfully against another). Defendant has not been sentenced and judgment has not yet been entered.
Argument
Defendant argues that the jury verdict was repugnant because the elements of the charges of which he was acquitted negate an essential element of the charges of Robbery in the Second Degree and Criminal Possession of a Weapon in the Second Degree of which he was convicted. Defendant further argues that the evidence adduced at trial was legally insufficient to Support his conviction because the complainant did not testify truthfully at trial. Finally, defendant argues that he was substantially prejudiced by remarks made by the prosecution in summation and by the testimony of the complainant concerning defendant's prior incarceration.
In support of his motion concerning sufficiency of the evidence, defendant argues that complainant and eye witness Janel Jackson were not truthful about their relationship. Defendant includes, as an exhibit to the motion, copies of pictures and text from Facebook. The Facebook entries were not admitted as evidence at trial although in possession of defense counsel on her smart phone and used to question the witnesses. Accordingly, Exhibit F is not part of the record on this motion. Nevertheless, even if the court were to consider Exhibit F, defendant's motion still fails for all of the reasons set forth herein.
The People oppose defendant's motion and argue, first, that defendant's CPL § 440.10 motion is premature since defendant has not yet been sentenced and judgment has not been entered. The People further argue that defendant failed to preserve a repugnancy claim by failing to raise an objection prior to the discharge of the jury. Nevertheless, the People argue that the verdict was not repugnant since the acquittals did not negate an essential element required to convict on the latter charges. Concerning the legal sufficiency of the verdict, the People argue that the evidence viewed in the light most favorable to the People clearly established that defendant was aided by another while committing a robbery and that defendant was in possession of a loaded pistol outside of his home or place of business. Finally, the People argue that defendant was not prejudiced by testimony of the complainant on cross examination or by the People's summation and that the court appropriately provided, on both occasions, a curative instruction to the jury.
DiscussionCriminal Procedure Law §330.30(1) allows a trial court to set aside a verdict only on a ground which, if raised on appeal, would require reversal as a matter of law. People v. James, 112 A.D.2d 380, 491 N.Y.S.2d 836 [2d Dept 1985]. Criminal Procedure Law § 440.10 provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment on the grounds that, inter alia, "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL § 440.10[1][h]. The court denies the motion without a hearing because the moving papers fail to allege a ground constituting a legal basis for the motion and fail to allege sufficient facts to support the legal ground asserted. CPL § 440.30(4)(a); CPL § 440.30(4)(b); People v. Carceras, 34 N.Y.2d 254, 255-256, 313 N.E.2d 728, 357 N.Y.S.2d 409 (1974).
The court may properly consider a CPL § 330.30 motion as one made under CPL article 440 where fairness and judicial economy are not sacrificed (see Judiciary Law § 2-b [3]; People v Deblinger, 179 Misc. 2d 35, 38, 683 N.Y.S.2d 814 [1998], affd 267 A.D.2d 395, 700 N.Y.S.2d 723 [1999], [*1056] lv denied 94 N.Y.2d 946, 710 N.Y.S.2d 3 [2000]). Contrary to the People's assertion, it is within this court's discretion to consider defendant's motion pursuant to both CPL §§ 330.30(1) and 440.10.
(A) Repugnancy
To preserve a claim of repugnancy of a verdict, a defendant is required to register a protest on the issue prior to the discharge of the jury, when any infirmity in the verdicts could be remedied by resubmission to the jury for its reconsideration (CPL §330.30[1]; People v. Satloff, 56 NY2d 745 [1982]; People v. Stahl, 53 NY2d 1048 [1981]; People v. Alfaro, 108 AD2d 517 [1985]. Here, defendant failed to object to the alleged repugnancy of the verdict before the jury was discharged. (Affirmation in Support of the Motion at ¶ 23). Thus, defendant has failed to preserve for review his contention that the verdict is repugnant, (see People v. Alfaro, 66 NY2d 985, 987, 489 NE2d 1280, 499 NYS2d 378 [1985]; People v Henderson, 78 AD3d 1506, 1507, 911 NYS2d 521 [2010], lv denied 16 NY3d 743, 942 NE2d 1050, 917 NYS2d 625 [2011]). Despite the untimeliness of defendant's objection, the Court will address the merits of defendant's argument.
A reviewing court must determine whether the defendant's acquittal on one or more of the counts necessarily negated an essential element of another count of which the defendant was convicted (People v Tucker, 55 NY2d 1, 447 NYS2d 132 [1981]; People v Goodfriend, 64 NY2d 695, 697, 485 NYS2d 519 [1984]). A verdict as to aparticular count shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. (Id.; People v. Muhammad, 17 NY3 532,539, 935 NYS2d 526 [2011]). A jury is free to "reject evidence and exercise its mercy function by rendering a verdict that appears factually illogical" (Id. at 8). The reviewing court is prohibited from consideration of the particular facts of the case (Tucker, 55 NY2d at 4, 6-7; see e.g. People v Rayam, 94 NY2d at 561; People v Johnson, 70 NY2d 819, 820, 517 NE2d 1320, 523 NYS2d 434 [1987] (a repugnancy claim must be "(e)xamined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case"]).
Here, defendant argues that by finding him not guilty of Robbery in the First Degree the jury has stated that "defendant did not have a deadly weapon which he used to forcibly steal from the complainant." However, as asserted by the People, the court's charge did not define the offenses in such a way to make an acquittal of one crime conclusive as to a necessary element of the second crime for which a guilty verdict was rendered. Thus, a jury may find a defendant not guilty of both Robbery in the First Degree (deadly weapon) and Criminal Possession of a Weapon in the Second Degree (intent to use unlawfully against another) but guilty of Criminal Possession of a Weapon in the Second Degree (loaded and outside home or place of business) and Robbery in the Second Degree (aided by another). As the People note, the crimes have different elements.
Moreover, defendant overlooks the fact that each count of which he was convicted charges that he acted in concert with Megan Stallinger and/or an unidentified passenger who was alleged to be the get-away driver. Therefore, it is possible that the jury attributed certain elements to the actions of the accomplices. (People v. Nash, 273 A.D.2d 696, 710 N.Y.S.2d 157 [3d Dep't 2000] (verdict not repugnant where jury free to conclude that defendant, acting in concert with another during commission of the crime, committed murder but did not possess the weapon). Furthermore, while the court need not and should not parse the facts in support of the verdict, defendant's acquittal of Criminal Possession of Weapon in the Second Degree (intent to use unlawfully against another) is consistent with his acquittal of Robbery in the First Degree (deadly weapon) in that the jury may have concluded that defendant possessed a gun outside of his home or place of business but did not use the gun to commit the robbery and thus did not possess it with the intent to use it. (See People v. James, 112 A.D.2d 380 [2d Dept 1985] (verdict finding defendant guilty ofburglary not repugnant to a verdict of not guilty of robbery where jury may have concluded that defendant entered apartment with a gun with the intent to commit a crime but later stole property without the use of the gun). Accordingly, the verdict is not repugnant.
Finally, defendant's reliance on People v. Carbonell (40 N.Y. 2d 948, 390 N.Y.S.2d 409 [1976] is misplaced. In Carbonell, the Court of Appeals held that the jury verdict of guilty of Robbery in the Third Degree but not guilty of Larceny was internally self contradictory. However, the jury was not advised that if it found defendant guilty of robbery it did not have to reach the larceny counts. Id.
(B) Legal Sufficiency
A CPL 330.30 motion may be based on the alleged legal insufficiency of the evidence to support the charges for which defendant was convicted. (See CPL 330.30 [1]; see also, People v. Danielson, 9 NY3d 342, 348, 880 N.E.2d 1, 849 N.Y.S.2d 480 [2007]). This court must, therefore, determine on the record if defendant's present arguments were preserved, much as an appellate court would be constrained to do on appeal. A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no "valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v. Abraham, 22 N.Y. 3d 140, 978 N.Y.S.2d 723, People v Danielson, 9 NY3d 342, 349, 880 N.E.2d 1, 849 N.Y.S.2d 480 [2007] quoting People v Acosta, 80 NY2d 665, 672, 609 N.E.2d 518, 593 N.Y.S.2d 978 (1993) [internal quotation marks omitted]). Defendant's motions pursuant to CPL §290.10 at the end of the People's case and at the end of all of the evidence were sufficient to preserve those arguments herein.
Viewing the evidence in the light most favorable to the prosecution, as set forth fully in the People's brief, there is sufficient evidence in the record that defendant committed Robbery in the Second Degree by forcibly stealing property from complainant with the aid of another person actually present. Moreover, viewing the evidence in the light most favorable to the prosecution, as set forth fully in the People's brief, there is sufficient evidence in the record that defendant knowingly possessed a loaded and operable firearm in a place that was not the defendant's home or place of business. As the People noted, there was sufficient independent corroboration of various elements of both the victim's and the eyewitness' accounts such as the DNA, video stills, ballistic evidence and defendant's and Megan Stallinger's pleas on the Nassau County case.
(C) Prejudice
Defendant's final argument is that he was prejudiced during the trial by complainant's testimony concerning his prior incarceration and remarks made by the prosecution in summation. As noted by the People, on direct examination the complainant testified that around October or November of 2011 he had been contacted by defendant. However, on cross examination defense counsel tried to illicit from the complainant a more specific date. As a result, complainant referenced the defendant's most recent incarceration. The Court provided the jury with a curative instruction that was drafted with input from defense counsel. Accordingly, a mistrial was not warranted. (People v. Randolph, 23 A.D.3d 244 [1st Dep't 2005] (the court properly exercised its discretion in denying defendant's mistrial motion made when a police officer blurted out on cross-examination that he was told that defendant had a violent history. The court's thorough curative actions were sufficient to prevent any prejudice).
Similarly, defendant argues that during summation the People improperly told the jury that they did not have to believe complainant's testimony to convict defendant of "the charges herein." The People are correct in that this argument in summation was limited to the simple possession charge. Nevertheless, the court gave a curative instruction twice, at the time of the summation and again during the final charge. The jury is presumed to follow the court's instruction and here, defendant's conviction of both Robbery in the Second Degree and Criminal Possession of a Weapon in the Second Degree demonstrates that it did. A mistrial was not warranted under these circumstances.
Defendant further argues that the People improperly suggested that the detective who viewed the entire lost video saw defendant pick up property as he fled. However, these challenged portions of the People's sunjmation were not improper. The summation remarks were "fair comment upon the evidence, responsive to the defense's summation, within the bounds of rhetorical comment..." (see People v Galloway, 54 NY2d 396, 399, 430 N.E.2d 885, 446 N.Y.S.2d 9; People v Ashwal, 39 NY2d 105, 109-110, 347 N.E.2d 564, 383 N.Y.S.2d 204). And further, the summation comments were not outside the bounds of the court's prior ruling regarding the lost video tape. Accordingly, defendant was not deprive of a fair trial and was not prejudiced, (see People v Roscher, 114 AD3d 812, 980 N.Y.S.2d 146 [2d Dept 2014]; People v Rogha, 213 AD2d 266, 266, 624 N.Y.S.2d 125 [1st Dept 1995]).
To the extent that the court reserved decision on defendant's CPL §290.10 motion at the end of the People's case and at the end of all of the evidence, defendant's motion is denied in its entirety.
CONCLUSION
The defendant's motion is denied.
This constitutes the Decision and Order of the Court. 10.14. 2014
Date
/s/_________
J. S. C.