Opinion
834 KA 16-02156
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Darrell BELTON, Jr., Defendant-Appellant.
KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (JESSICA J. BURGASSER OF COUNSEL), FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (JESSICA J. BURGASSER OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, 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 murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree ( § 265.03 [3] ), defendant contends that he was denied effective assistance of counsel based on counsel's alleged failures to, among other things, adequately challenge the suggestiveness of the photo array during the Wade hearing and submit a timely argument after that hearing, cross-examine witnesses, move for a trial order of dismissal, or call a witness who would disprove a jail deputy's testimony concerning defendant's statements. We reject that contention. With respect to the Wade hearing, we conclude that "even assuming, arguendo, that defense counsel could have established suggestiveness of the identification procedure, ... defense counsel could have concluded that there was an independent source for the identification of defendant" at trial by the witness who viewed the photo array ( People v. Dark , 122 A.D.3d 1321, 1322, 996 N.Y.S.2d 830 [4th Dept. 2014], lv denied 26 N.Y.3d 1039, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015], reconsideration denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ). Specifically, the witness who viewed the photo array testified at trial that she had seen defendant once or twice per week for more than a year, knew what type of car defendant drove, and knew defendant's street name, which she provided to the 911 operator prior to viewing the photo array. In light of the witness's familiarity with defendant (see generally People v. Rodriguez , 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ; People v. Gambale , 158 A.D.3d 1051, 1052-1053, 70 N.Y.S.3d 684 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ), we conclude that any further attempt by defense counsel to suppress the identification of defendant by that witness through a Wade hearing would have been futile, and that defense counsel thus was not ineffective (see People v. Petty , 208 A.D.2d 774, 774, 617 N.Y.S.2d 784 [2d Dept. 1994], lv denied 84 N.Y.2d 1036, 623 N.Y.S.2d 193, 647 N.E.2d 465 [1995] ; see also People v. Smith , 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819 [4th Dept. 2014], lv denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).
We reject defendant's further contention that defense counsel's failure to timely make written arguments after the Wade hearing constituted ineffective assistance of counsel. Counsel submitted written arguments that, although untimely, were considered by Supreme Court, and those arguments "set forth a cogent theory for suppression of the evidence, and defense counsel vigorously pursued that theory through cross-examination of the police witness" ( People v. Harris , 147 A.D.3d 1354, 1356, 46 N.Y.S.3d 746 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; cf. People v. Clermont , 22 N.Y.3d 931, 933-934, 977 N.Y.S.2d 704, 999 N.E.2d 1149 [2013] ). Similarly, counsel's failure to preserve all of defendant's legal sufficiency challenges does not constitute ineffective assistance because those challenges would not have been meritorious (see People v. Jackson , 108 A.D.3d 1079, 1080, 968 N.Y.S.2d 789 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ).
Defendant's contention that defense counsel was ineffective in failing to call a particular witness is based on matters outside the record and thus must be raised in a motion pursuant to CPL article 440 (see generally People v. Maffei , 35 N.Y.3d 264, 269-270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ). Defendant's contentions concerning the purported inadequacies in the cross-examination of the witnesses are merely "hindsight disagreements with defense counsel's trial strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies" ( People v. Morrison , 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495 [4th Dept. 2008], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257 [2008] ; see People v. Smith , 192 A.D.3d 1648, 1649, 141 N.Y.S.3d 397 [4th Dept. 2021], lv denied 37 N.Y.3d 968, 148 N.Y.S.3d 754, 171 N.E.3d 230 [2021] ). Viewing the evidence, the law, and the circumstances of the case as a whole and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's further contention, the court did not err in imposing consecutive sentences. "So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible" ( People v. Brown , 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ; see People v. Malloy , 33 N.Y.3d 1078, 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 [2019] ). Here, eyewitness testimony establishes that defendant was asked to come to the victim's house to provide marihuana, that he did so, and that he was there speaking to the victim for some time about a possible sale of that drug before defendant took the weapon out of a pocket in his sweatshirt and shot the victim several times, "supporting the conclusion that defendant possessed the weapon for a sufficient period of time before forming the specific intent to kill" ( Malloy , 33 N.Y.3d at 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 ; see People v. Redmond , 182 A.D.3d 1020, 1022-1023, 123 N.Y.S.3d 331 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 856, 151 N.E.3d 537 [2020] ; People v. Walton , 168 A.D.3d 1103, 1107, 92 N.Y.S.3d 390 [2d Dept. 2019], lv denied 33 N.Y.3d 1036, 102 N.Y.S.3d 496, 126 N.E.3d 146 [2019], reconsideration denied 34 N.Y.3d 955, 110 N.Y.S.3d 636, 134 N.E.3d 635 [2019] ).
We have considered defendant's remaining contention, and we conclude that it does not require reversal or modification of the judgment.