Opinion
2017–09154 Ind. No. 1002/16
06-14-2023
The PEOPLE, etc., respondent, v. Hengjun CHAO, appellant.
Hengjun Chao, Auburn, NY, appellant pro se. Miriam E. Rocah, District Attorney, White Plains, NY (Steven A. Bender and Jill Oziemblewski of counsel), for respondent.
Hengjun Chao, Auburn, NY, appellant pro se.
Miriam E. Rocah, District Attorney, White Plains, NY (Steven A. Bender and Jill Oziemblewski of counsel), for respondent.
BETSY BARROS, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry Warhit, J.), rendered August 9, 2017, convicting him of attempted murder in the second degree, criminal use of a firearm in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In April 2009, an investigating committee from the Icahn School of Medicine at Mount Sinai issued a report concluding that the defendant committed scientific misconduct. In May 2009, the complainant, who was the defendant's supervisor, issued a letter terminating the defendant's employment. In August 2016, outside of a delicatessen in Westchester County, the defendant fired a shotgun at the complainant. After a jury trial, the defendant was convicted of attempted murder and related crimes.
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 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the verdict of guilt 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 ).
The defendant's contention that the evidence before the grand jury was legally insufficient to indict him is not reviewable on this appeal because the defendant's guilt was proven beyond a reasonable doubt at trial (see CPL 210.30[6] ; People v. Molina, 188 A.D.3d 920, 923, 133 N.Y.S.3d 618 ). His contention that the indictment should have been dismissed because perjured testimony was submitted to the grand jury is also not reviewable on this appeal, since the judgment of conviction was based upon legally sufficient trial evidence (see People v. Hayes, 44 A.D.3d 683, 683–684, 843 N.Y.S.2d 175 ).
To the extent that the defendant contends that there was prosecutorial misconduct because the testimony of a medical expert called by the People was inconsistent with certain documentation admitted into evidence at trial, his contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Jordan, 181 A.D.2d 745, 746–747, 581 N.Y.S.2d 71 ). In any event, "not every inconsistency ... implies that the witness’ testimony is perjurious" ( People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ). Here, the defendant fails to present "some actual evidence of knowledge on the part of the prosecution that" the evidence proffered by the prosecution was false ( People v. Brown, 56 N.Y.2d 242, 247, 451 N.Y.S.2d 693, 436 N.E.2d 1295 ).
Moreover, the defendant's related contention that certain comments made by the prosecutor during the opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review, since the defendant failed to object to the challenged statements, seek curative instructions, or move for a mistrial on the grounds now raised (see CPL 470.05[2] ; People v. Flowers, 213 A.D.3d 692, 182 N.Y.S.3d 237 ; People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57 ). In any event, the challenged remarks were either fair comment on the evidence and the inferences to be drawn therefrom (see People v. Adolph, 206 A.D.3d 753, 167 N.Y.S.3d 821 ; People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ), fair response to defense counsel's comments during summation (see People v. Dubarry, 215 A.D.3d 689, 187 N.Y.S.3d 79 ; People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651 ; People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714 ), or not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ).
The defendant's contentions that the Supreme Court provided an unbalanced interested witness charge and improperly failed to provide a renunciation charge to the jury are unpreserved for appellate review, as the defendant did not object to the court's charge as given (see CPL 470.05[2] ; People v. Ewers, 195 A.D.3d 857, 145 N.Y.S.3d 832 ; People v. Jean–Baptiste, 37 A.D.3d 852, 853, 829 N.Y.S.2d 919 ). In any event, the interested witness charge was proper as given (see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340 ), and there is no reasonable view of the evidence to establish "that the object crime was abandoned ‘under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose’ " ( People v. Taylor, 80 N.Y.2d 1, 13, 586 N.Y.S.2d 545, 598 N.E.2d 693, quoting Penal Law § 40.10[3] ).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's claim of actual innocence is not properly raised on this direct appeal. The appropriate forum for the defendant's claim of actual innocence is a CPL 440.10 proceeding. Such claims pertain to " ‘factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial’ " ( People v. Green, 201 A.D.3d 814, 815, 160 N.Y.S.3d 108, quoting People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97 ). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, without merit.
BARROS, J.P., IANNACCI, FORD and WAN, JJ., concur.