Opinion
796 KA 15-01725
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Rasheen W. BELL, Defendant-Appellant. (Appeal No. 1.)
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon the same jury verdict, of conspiracy in the second degree (§ 105.15). In appeal No. 3, defendant appeals, by leave of a Justice of this Court, from an order denying his motion pursuant to CPL article 440 to vacate the foregoing judgments, without a hearing. We affirm in each appeal.
Viewing the evidence independently and in light of the elements of the crime of murder in the second degree as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention in appeal No. 1 that the verdict convicting him of that crime 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] ). Contrary to defendant's contention in appeal No. 2, the conviction of conspiracy in the second degree is supported by legally sufficient evidence (see generally People v. Caban , 5 N.Y.3d 143, 149, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), and the verdict on that crime is not against the weight of the evidence when viewed independently and in light of the elements as charged to the jury (see generally Danielson , 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Gonzalez , 174 A.D.3d 1542, 1544-1545, 105 N.Y.S.3d 674 [4th Dept. 2019] ). Contrary to defendant's further assertion, the conspiracy conviction cannot be against the weight of the evidence as to the affirmative defense of renunciation because Supreme Court never submitted that affirmative defense to the jury (see People v. Simpson , 173 A.D.3d 1617, 1618, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ; People v. Mahon , 160 A.D.3d 563, 563, 74 N.Y.S.3d 554 [1st Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ).
Defendant further argues in appeal Nos. 1 and 2 that defense counsel was ineffective for failing to craft a successful motion to challenge the jury panel on the ground that it was not "selected at random from a fair cross-section of the community in [Monroe County]" ( Judiciary Law § 500 ). To the extent reviewable on direct appeal, defendant's contention is unavailing because he has not "establish[ed] that a successful motion [on that ground] could have been made under these circumstances" ( Simpson , 173 A.D.3d at 1620, 102 N.Y.S.3d 357 ; see People v. Larkins , 153 A.D.3d 1584, 1586, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 94 N.E.3d 493 [2017] ).
In appeal No. 3, defendant initially contends that defense counsel was ineffective for implicitly abandoning his motion for a Cardona hearing (see People v. Cardona , 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306 [1977] ) with respect to a jailhouse informant. We reject that contention. The trial testimony demonstrated that the informant relayed defendant's murder confession to the Monroe County District Attorney's office on the informant's own accord , without any prior involvement of or encouragement from law enforcement. The informant was therefore not a government agent when defendant confessed to murder, notwithstanding the informant's " ‘self-interest in obtaining better treatment from the government’ " when he first approached the District Attorney's office ( People v. Newbeck , 157 A.D.3d 908, 909, 69 N.Y.S.3d 679 [2d Dept. 2018], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ). Moreover, although defendant made additional inculpatory statements to the informant after the latter had become a government agent, those later statements were not subject to suppression under Cardona because they related to a new crime, i.e., conspiracy (see People v Bongarzone , 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ). Thus, because the facts and the law were unfavorable to the motion for a Cardona hearing, defense counsel's implicit abandonment of that motion "cannot be deemed ineffective" ( People v. Pabon , 173 A.D.3d 1847, 1848, 104 N.Y.S.3d 471 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 134 N.E.3d 658 [2019] ; see People v. Bradford , 118 A.D.3d 1254, 1255-1256, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ).
Defendant next contends in appeal No. 3 that defense counsel was ineffective for failing to supply the defense psychiatrist with sufficient documents about defendant's mental health history. That contention is without merit because, as the psychiatrist explained in a letter to defense counsel, any psychiatric defense was logically precluded by defendant's insistence that he had nothing to do with the murder. Thus, defense counsel was not ineffective in failing to supply the expert with further documents that, under the circumstances, would have made no difference in the case (see People v. Henderson , 27 N.Y.3d 509, 514, 35 N.Y.S.3d 274, 54 N.E.3d 1145 [2016] ; People v. Pavone , 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ; People v. Nemelc , 161 A.D.3d 615, 617, 78 N.Y.S.3d 35 [1st Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ).
Defendant finally contends in appeal No. 3 that defense counsel failed to adequately advise him about the strength of the People's case and the benefits of a plea bargain. According to defendant's affidavit in support of his motion, he would have accepted a plea bargain with proper counseling. Defendant's characterization of his willingness to plead guilty, however, was "made solely by [him] and [was] unsupported by any other affidavit or evidence" ( CPL 440.30 [4] [d] ) and, given his repeated and strident refusals on the record to contemplate any plea bargaining, "there is no reasonable possibility that such allegation is true" (id. ). The court thus properly denied defendant's motion to vacate on that ground.