Opinion
841 KA 14-02097.
07-07-2017
The PEOPLE of the State of New York, Respondent, v. Virgil R. BROWN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of predatory sexual assault against a child ( Penal Law § 130.96 ), defendant contends that he did not validly waive the right to be present at trial. We reject that contention. It is well settled that "the right to be present is clearly waivable under both the Federal and State Constitutions" ( People v. Epps, 37 N.Y.2d 343, 349, 372 N.Y.S.2d 606, 334 N.E.2d 566, cert. denied 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374 ; see generally People v. Rossborough, 27 N.Y.3d 485, 488–489, 34 N.Y.S.3d 399, 54 N.E.3d 71 ), and that, "for the waiver to be effective, the record must reveal that the defendant was aware that he had the right to be present and that the trial would proceed in his absence" ( People v. McGee, 161 A.D.2d 1195, 1195, 555 N.Y.S.2d 527, lv. dismissed 76 N.Y.2d 861, 560 N.Y.S.2d 1001, 561 N.E.2d 901 ; see People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; People v. Tucker, 261 A.D.2d 877, 877–878, 690 N.Y.S.2d 799, lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393 ). Here, the record establishes that defendant signed written Parker warnings, and he was informed at the time that he signed them that they encompassed the situation that later occurred during trial, when he declined to leave his jail cell and come to court. In addition, after defendant initially refused to come to court from the jail on the first day of trial, County Court directed that he be brought to the courtroom by force if necessary and, after defendant arrived in the courtroom, the court explained to him at length his right to be present at trial. Contrary to defendant's contention, the court advised defendant that he had a right to be present for trial and that it was in his interests to do so, but defendant eventually stated that "I'm not going to attend this trial. To me it's illegal."
We reject defendant's contention that the court should have directed that he be brought to court daily to ascertain whether he had changed his mind. The court properly determined that defendant "had waived his right to be present at various stages of his trial by refusing to be produced in the courtroom ... Defendant was not entitled to set conditions under which he would agree to come out of the holding cell" ( People v. Romance, 35 A.D.3d 201, 202, 824 N.Y.S.2d 644, lv. denied 8 N.Y.3d 926, 834 N.Y.S.2d 517, 866 N.E.2d 463 ). Defendant's further contention that CPL 340.50(2) mandates that he sign a waiver of the right to be present at trial is without merit. That statute is part of Title K of the Criminal
Procedure Law, which applies to prosecutions in local court. Defendant, however, was prosecuted in a superior court. Title J, which governs prosecutions of indictments in superior courts, has no such requirement (see CPL 260.20 ), and it is well settled that an oral waiver of the right to be present is sufficient (see e.g. People v. Chandler, 224 A.D.2d 992, 993, 637 N.Y.S.2d 830, lv. denied 88 N.Y.2d 845, 644 N.Y.S.2d 692, 667 N.E.2d 342 ). We have considered defendant's remaining contentions concerning his waiver of the right to be present at trial and we conclude that they are without merit.
We reject defendant's contentions that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence. The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ) and, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends that the court erred in denying his Payton motion, in which he sought to suppress statements that he made when he was taken into custody and the results of DNA tests that were performed upon evidence seized from him while he was in custody. With respect to defendant's challenge to the statements that he made when taken into custody, the only statement from defendant that was introduced at trial was defendant's date of birth. The People, however, also introduced the testimony of defendant's older sister regarding his date of birth, along with defendant's birth certificate. Thus, any error in admitting defendant's statement is harmless because it "[was] largely duplicative of the properly admitted" evidence ( People v. Borukhova, 89 A.D.3d 194, 216, 931 N.Y.S.2d 349, lv. denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128, reconsideration denied 18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709 ; see People v. Smith, 42 A.D.3d 553, 553, 839 N.Y.S.2d 805, lv. denied 9 N.Y.3d 1039, 852 N.Y.S.2d 24, 881 N.E.2d 1211 ; People v. Higgins, 299 A.D.2d 841, 842, 749 N.Y.S.2d 629, lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172 ), the remaining, properly admitted evidence of guilt is overwhelming, and there is no reasonable possibility that the jury would have acquitted him if the statement was suppressed (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
With respect to the DNA evidence, defendant's DNA was developed from a sample taken upon court order issued approximately eight months after defendant was arrested. On appeal, defendant has failed to establish, or indeed present any argument, that such sample was an unattenuated byproduct of the allegedly unlawful arrest. Thus, because the DNA evidence was seized pursuant to an intervening court order based on an unchallenged finding of probable cause, "the connection between [any allegedly] lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint’ " ( Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 ; see generally Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 32 L.Ed.2d 152 ; People v. Allah, 140 A.D.2d 613, 613, 529 N.Y.S.2d 5, lv. denied 72 N.Y.2d 915, 532 N.Y.S.2d 849, 529 N.E.2d 179, cert. denied 490 U.S. 1026, 109 S.Ct. 1758, 104 L.Ed.2d 194 ).
Inasmuch as no other evidence that was the subject of the suppression hearing was introduced at trial, we reject defendant's contention that he was deprived of effective assistance of counsel based on his attorney's performance at that hearing. In our view, "counsel made every effort to suppress the ... evidence and, inasmuch as it eventuated that such evidence was not introduced at trial, [there is] no basis for faulting counsel's performance" ( People v. Jackson, 140 A.D.3d 1771, 1772, 32 N.Y.S.3d 430, lv. denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 ; see generally People v. Lott, 55 A.D.3d 1274, 1275, 864 N.Y.S.2d 626, lv. denied 11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768, reconsideration denied 12 N.Y.3d 760, 876 N.Y.S.2d 711, 904 N.E.2d 848 ). Thus, "[u]nder any view of the record in this case, [defense] counsel's [performance at the hearing] did not prejudice the defense or defendant's right to a fair trial" ( People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ).
We also reject defendant's further contention that defense counsel was ineffective in failing to move for a Dunaway hearing " ‘where, as here, such [a motion] was potentially futile’ " ( People v. Smith, 128 A.D.3d 1434, 1434–1435, 8 N.Y.S.3d 777, lv. denied 26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 ; see People v. Jackson, 48 A.D.3d 891, 893–894, 851 N.Y.S.2d 677, lv. denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87 ; People v. Polanco, 13 A.D.3d 100, 101, 786 N.Y.S.2d 437, lv. denied 4 N.Y.3d 802, 795 N.Y.S.2d 177, 828 N.E.2d 93 ).
Based on defense counsel's remarks at sentencing, however, we conclude that defense counsel "essentially[ ] became a witness against [defendant] and took a position adverse to him," thereby denying him effective assistance of counsel at sentencing ( People v. Caccavale, 305 A.D.2d 695, 695, 760 N.Y.S.2d 210 ; see People v. Lawrence, 27 A.D.3d 1091, 1091–1092, 812 N.Y.S.2d 199 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for the assignment of new counsel and resentencing.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence, and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings.