Opinion
2009–02531 Ind. No. 6797/07
06-07-2023
The PEOPLE, etc., respondent, v. Dexter BOSTIC, appellant.
Twyla Carter, New York, NY (Arthur H. Hopkirk of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Diane R. Eisner of counsel), for respondent.
Twyla Carter, New York, NY (Arthur H. Hopkirk of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Diane R. Eisner of counsel), for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Plummer E. Lott, J.), rendered February 25, 2009, convicting him of aggravated murder, attempted aggravated murder, and criminal possession of a weapon in the second degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
On July 9, 2007, the defendant, acting in concert with two codefendants, shot police officers Russell Timoshenko and Herman Yan during a traffic stop. Officer Timoshenko died as a result of his injuries on July 14, 2007. On November 10, 2008, a joint trial commenced against the defendant and his two codefendants (see People v. Ellis, 117 A.D.3d 843, 985 N.Y.S.2d 727 ; People v. Woods, 80 A.D.3d 718, 914 N.Y.S.2d 682 ), but with three separate juries to deliberate on the charges against each of the three defendants.
The defendant's contention that the evidence was legally insufficient to support his conviction of attempted aggravated murder is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted aggravated murder beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the conviction of attempted aggravated murder was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Contrary to the defendant's contention, with respect to the charge of aggravated murder, the Supreme Court properly denied his request to charge the jury on the lesser included offense of aggravated manslaughter in the first degree. "A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20(37)" ( People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ). Here, the defendant established the first prong. "Second, the party making the request for a charge-down ‘must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater’ " ( id. at 120, 989 N.Y.S.2d 446, 12 N.E.3d 444, quoting People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 ; see CPL 300.50[1] ). "In assessing whether there is a ‘reasonable view of the evidence,’ the proof must be looked at ‘in the light most favorable to [the] defendant’ " ( People v. Rivera, 23 N.Y.3d at 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444, quoting People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ; see People v. Ranot, 194 A.D.3d 967, 968, 147 N.Y.S.3d 683 ). Here, the evidence adduced at trial demonstrated that Officer Timoshenko was shot twice directly in the face while standing next to a vehicle in which the defendant and his codefendants were seated. Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence to support a finding that the defendant intended to cause serious physical injury to Officer Timoshenko as opposed to death (see People v. Moreno, 16 A.D.3d 438, 438, 792 N.Y.S.2d 99 ; People v. Wheeler, 257 A.D.2d 673, 673, 685 N.Y.S.2d 94 ; cf. People v. Cabassa, 79 N.Y.2d 722, 728–730, 586 N.Y.S.2d 234, 598 N.E.2d 1 ).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in conducting a joint trial before separate juries rather than fully severing the defendant's trial from the trial of his codefendants (see generally People v. Singletary, 164 A.D.3d 1477, 1478, 84 N.Y.S.3d 212 ). "Severance motions are addressed to the sound discretion of the trial court" ( People v. Boylan, 193 A.D.3d 964, 965, 142 N.Y.S.3d 855, citing People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 ) "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses" ( People v. Cardwell, 78 N.Y.2d 996, 997, 575 N.Y.S.2d 267, 580 N.E.2d 753 [internal quotation marks omitted]; see People v. Ricardo B., 73 N.Y.2d 228, 233, 538 N.Y.S.2d 796, 535 N.E.2d 1336 ). Thus, "[s]everance is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt" ( People v. Boylan, 193 A.D.3d at 965, 142 N.Y.S.3d 855 [internal quotation marks omitted]; see People v. Warren, 20 N.Y.3d 393, 397, 960 N.Y.S.2d 716, 984 N.E.2d 914 ). Here, the various defenses amongst the defendant and his codefendants at trial were not in irreconcilable conflict (see People v. Peisahkman, 29 A.D.3d 352, 352, 814 N.Y.S.2d 609 ; cf. People v. Feliciano, 189 A.D.3d 416, 417, 136 N.Y.S.3d 268 ; People v. Lessane, 142 A.D.3d 562, 564, 36 N.Y.S.3d 231 ). Although the codefendants’ respective counsel at times took adversarial stances against the defendant, they did not elicit any new evidence against the defendant that his jury would not otherwise have heard had he been granted a separate trial (cf. People v. Cardwell, 78 N.Y.2d at 998, 575 N.Y.S.2d 267, 580 N.E.2d 753 ; People v. Lessane, 142 A.D.3d at 564, 36 N.Y.S.3d 231 ). Further, contrary to the defendant's contention, to the extent that the defendant's jury may have heard anything that it might not have heard at a separate trial, including cross-examination by counsel for his codefendants, this did not deprive him of a fair trial under the circumstances (see People v. Bruno, 111 A.D.3d 488, 489, 975 N.Y.S.2d 22 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court was required to hold a Frye hearing (see Frye v. United States, 293 F. 1013 [D.C. Cir.] ) before allowing the People's ballistics comparisons expert to testify at trial (see CPL 470.05[2] ; see generally People v. Diaz, 189 A.D.3d 1063, 1066, 136 N.Y.S.3d 29 ). In any event, the purported error was harmless under the standard that applies to nonconstitutional errors, because the evidence of the defendant's guilt, without reference to the purported error, was overwhelming, and there was no significant probability that the jury would have acquitted him had it not been for the purported error (see People v. Williams, 35 N.Y.3d 24, 42–43, 124 N.Y.S.3d 593, 147 N.E.3d 1131 ).
The defendant also failed to preserve for appellate review his contention that the testimony of the ballistics comparisons expert lacked a proper foundation. In any event, the People established that "accepted methods were appropriately employed in" this case ( Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447, 824 N.Y.S.2d 584, 857 N.E.2d 1114 ; see People v. Wesley, 83 N.Y.2d 417, 428–429, 611 N.Y.S.2d 97, 633 N.E.2d 451 ), and any weaknesses in the "testimony went to credibility and the weight of the evidence rather than to its admissibility" ( People v. Nelson, 186 A.D.3d 1404, 1406, 129 N.Y.S.3d 18, citing People v. Jackson, 125 A.D.3d 1002, 1004, 2 N.Y.S.3d 625 ).
"[C]ertain deviations from mandated procedural, structural and process-oriented standards affect ‘the organization of the court or the mode of proceedings prescribed by law’ and present a question of law even without a timely objection" ( People v. Agramonte, 87 N.Y.2d 765, 769–770, 642 N.Y.S.2d 594, 665 N.E.2d 164, quoting People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898 ). "Only fundamental defects in judicial proceedings, however, fall within this very narrow category of so-called ‘mode of proceedings’ errors" ( People v. Agramonte, 87 N.Y.2d at 770, 642 N.Y.S.2d 594, 665 N.E.2d 164 ). "Mode of proceedings errors are immune not only from the rules governing preservation and waiver but also from harmless error analysis" ( People v. Mack, 27 N.Y.3d 534, 540, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ).
CPL 270.35(1) provides, among other things, that if the court discharges a juror and the "discharged juror was the foreperson, the court shall designate as the new foreperson the juror whose name was second drawn and called." Here, the Supreme Court erred by allowing the jury to designate its own replacement foreperson in contravention of the statutory procedure prescribed in CPL 270.35(1). However, the error was not a mode of proceedings error (see People v. Lee, 129 A.D.3d 1295, 1298–1299, 13 N.Y.S.3d 581 ; People v. Alexander, 104 A.D.3d 1221, 1222, 960 N.Y.S.2d 581 ). Defense counsel failed to preserve for appellate review his objection to the procedure employed (see People v. Arevalo, 168 A.D.3d 1091, 1091, 90 N.Y.S.3d 912 ; People v. Driver, 154 A.D.3d 958, 959, 64 N.Y.S.3d 222 ). In any event, the error was harmless (see People v. Burgess, 280 A.D.2d 264, 265, 719 N.Y.S.2d 649 ).
The defendant's remaining contention, that the trial court improperly curtailed his cross-examination of certain prosecution witnesses, is without merit.
BARROS, J.P., MILLER, GENOVESI and WAN, JJ., concur.