Opinion
109737
10-31-2019
The PEOPLE of the State of New York, Respondent, v. Jeremiah HAMILTON, Also Known as Kellan Brown and Havoc, Appellant.
Matthew C. Hug, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER
Devine, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered October 3, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree.
In September 2008, the victim was shot and killed while attempting to settle a dispute between defendant and Victor Toomer. Defendant was identified as the shooter and indicted on various charges. Following a jury trial in 2012, defendant was convicted of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree. Upon his appeal, we reversed and remitted for a new trial ( 127 A.D.3d 1243, 1247–1248, 6 N.Y.S.3d 707 [2015], lvs denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ). The retrial occurred in 2016 and ended with a jury again convicting defendant of those crimes. Supreme Court sentenced defendant to 25 years to life in prison upon the conviction for murder in the second degree, 25 years in prison to be followed by five years of postrelease supervision upon the conviction for attempted murder in the second degree and 3? to 7 years in prison upon the conviction for reckless endangerment in the first degree, those sentences to run consecutively. The sentences upon the remaining convictions were made to run concurrently and do not affect the overall term of imprisonment. Defendant appeals.
We affirm. Defendant's contentions that the verdict was not supported by legally sufficient proof and was against the weight of the evidence are meritless. The trial evidence included testimony from multiple eyewitnesses, some involved in the events leading up to the shooting and some not, as well as individuals who had firsthand knowledge of defendant's activities on the night in question or later spoke to him about the incident. This testimony revealed how defendant argued with and punched Toomer as the two were playing dice in the street. Defendant ran away from Toomer and several others who pursued him, sought a gun, obtained one from a man who testified at trial about the encounter and returned to the scene with the victim. Toomer and others were still in the area and the victim, who knew Toomer and wanted to resolve the dispute, spoke to Toomer while defendant paced across the street. Defendant then, without provocation, fired several shots in the direction of the victim, Toomer and others, one of which fatally struck the victim in the head. He returned the gun to its owner, from whom it was recovered a few days later, and testing revealed that the fatal bullet had been fired from it. Defendant further indicated that he was the shooter in conversations with multiple witnesses and told one, a fellow inmate, that he was "trying to handle his business" and that the victim had gotten "in the way." This proof, when viewed in the light most favorable to the People, was legally sufficient to support the verdict in all respects (see People v. Hamilton, 127 A.D.3d at 1244–1245, 6 N.Y.S.3d 707 ; see also People v. Miller, 118 A.D.3d 1127, 1129, 987 N.Y.S.2d 501 [2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Culpepper, 118 A.D.2d 866, 866, 500 N.Y.S.2d 350 [1986], lvs denied 68 N.Y.2d 667, 505 N.Y.S.2d 1032, 496 N.E.2d 690 [1986] ). Moreover, viewing the evidence in a neutral light and according deference to the jury's determination that the People's witnesses were credible, notwithstanding defendant's efforts to call their accounts into question, we do not find the verdict to be against the weight of the evidence (see People v. Cruz, 154 A.D.3d 429, 429, 62 N.Y.S.3d 100 [2017], lvs denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017], 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019] ; People v. Casseus, 120 A.D.3d 828, 829, 991 N.Y.S.2d 147 [2014] ; People v. Miller, 118 A.D.3d at 1129, 987 N.Y.S.2d 501 ).
Defendant next argues that Supreme Court should have granted his application for a mistrial after a prosecution witness testified that defendant was "on the run" at the time of the shooting because he had "merked somebody" in New York City. This information exceeded the bounds of a Molineux ruling, not included in the record, that apparently allowed the People to establish that defendant was wanted by the authorities in New York City for unspecified reasons. The violation was an isolated one that did not appear to be deliberate, however, and there is no indication that the jury knew what the slang term "merked" meant. Supreme Court further ameliorated any prejudice to defendant by immediately striking the testimony and, following arguments on his application for a mistrial, administering a proper curative instruction to the jury (cf. People v. Nicholas, 130 A.D.3d 1314, 1317, 14 N.Y.S.3d 214 [2015] ). Defendant was not deprived of a fair trial under these circumstances, and Supreme Court did not abuse its discretion in declining to declare a mistrial (see People v. Turcotte, 124 A.D.3d 1082, 1083–1084, 3 N.Y.S.3d 429 [2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 629, 34 N.E.3d 380 [2015] ; People v. White, 79 A.D.3d 1460, 1463, 913 N.Y.S.2d 818 [2010], lvs denied 17 N.Y.3d 791, 803, 929 N.Y.S.2d 99, 111, 952 N.E.2d 1094, 1106 [2011]; People v. Delaney, 42 A.D.3d 820, 822, 839 N.Y.S.2d 631 [2007], lv denied 9 N.Y.3d 922, 844 N.Y.S.2d 177, 875 N.E.2d 896 [2007] ).
Defense counsel founded his application for a mistrial upon the witness's use of the term "merked." Supreme Court stated that it had misheard the witness as saying "murdered," but explained that it was not able to see or hear the witness well because he was facing the jury. Defendant did not request any inquiry to determine if the jurors also misheard the witness or move for a mistrial on the assumption that they had, leaving unpreserved his attempt to raise that issue on appeal (see CPL 470.05[2] ; People v. Stephans, 168 A.D.3d 990, 999, 93 N.Y.S.3d 317 [2019] ; People v. Guzy, 167 A.D.3d 1230, 1236, 89 N.Y.S.3d 783 [2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 162, 123 N.E.3d 821 [2019] ).
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Contrary to defendant's further contention, reversal is not required due to the People's use of the prior consistent statements of three prosecution witnesses. A witness's prior consistent statement cannot be used for bolstering purposes, but is available to, as is relevant here, rebut charges of recent fabrication where the statement "predated the motive to falsify" ( People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993] ; see People v. Honghirun, 29 N.Y.3d 284, 289, 78 N.E.3d 804 [2017] ; People v. Davis, 44 N.Y.2d 269, 277, 405 N.Y.S.2d 428, 376 N.E.2d 901 [1978] ). Toomer testified as to what transpired and defendant's role in it, but was himself imprisoned on unrelated charges, had entered into a plea agreement requiring him to testify at defendant's first trial and expected the People to assist him on various matters as a result of his testimony at the second. He was cross-examined extensively about his initial statements to authorities that he was not present at the time of the shooting, his cooperation with the People and the benefits that he hoped to obtain by testifying at the retrial, the inference being that Toomer was motivated by his legal troubles to lie about what had occurred. Supreme Court properly allowed the People to rehabilitate Toomer by questioning him about consistent statements he made to the victim's family soon after the shooting occurred, then properly instructed the jury as to the use of those statements (see People v. Mirenda, 23 N.Y.2d 439, 451–452, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] ; People v. Burton, 159 A.D.3d 550, 551, 73 N.Y.S.3d 541 [2018], lv denied 31 N.Y.3d 1115, 81 N.Y.S.3d 375, 106 N.E.3d 758 [2018] ; People v. Flowers, 83 A.D.3d 524, 524–525, 922 N.Y.S.2d 297 [2011], lv denied 17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098 [2011], cert denied 565 U.S. 1017, 132 S.Ct. 556, 181 L.Ed.2d 402 [2011] ).
A second use of a prior consistent statement related to the fellow inmate's varying descriptions of the gesture made by defendant when he spoke about the shooting, while a third related to a witness's testimony that defendant had told her of his involvement in the shooting despite her initially telling investigators that she lacked knowledge about it. It is questionable whether either witness was cross-examined on those inconsistencies with the aim of inferring a recent motive to fabricate as opposed to mere impeachment and, moreover, debatable whether the prior consistent statements predated the motivation of either witness to lie (see People v. McDaniel, 81 N.Y.2d at 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140 [1987] ). Assuming without deciding that these prior consistent statements were admitted in error, however, the errors were harmless in view of "the overwhelming evidence of guilt, and because ‘prior consistent statements are notably less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court as out of it, and so credibility can be tested through cross-examination’ " ( People v. Figueroa, 171 A.D.3d 549, 550, 98 N.Y.S.3d 165 [2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 684, 130 N.E.3d 1294 [2019], quoting People v. Ludwig, 24 N.Y.3d 221, 230, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014] ; see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Darmetko, 56 A.D.2d 678, 679, 391 N.Y.S.2d 709 [1977] ).
Defendant also complains that he lacked the effective assistance of counsel, pointing to two supposed failings on the part of defense counsel. First, the People demonstrated that a potential witness was in the custody of federal officials, who rebuffed requests to produce him for the trial and proceedings in another matter, and that individual was "neither available to the People nor under their control" as a result ( People v. Sealy, 35 A.D.3d 510, 510, 826 N.Y.S.2d 358 [2006], lv denied 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627 [2007] ; see also People v. Savinon, 100 N.Y.2d 192, 198 n 5, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003] ). Defense counsel cannot be faulted for failing to pursue a missing witness charge that stood "little or no chance of success" given that showing, particularly absent any indication that the witness would have provided noncumulative testimony ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Kindred, 100 A.D.3d 1038, 1041, 952 N.Y.S.2d 832 [2012], lv denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013] ). Second, the gun identified as the murder weapon was mistakenly destroyed by a police officer before the retrial and, were we to assume that defendant sought the production of that weapon, he would have been entitled to an adverse inference charge regarding its absence upon request (see People v. Viruet, 29 N.Y.3d 527, 532, 59 N.Y.S.3d 294, 81 N.E.3d 828 [2017] ; People v. Handy, 20 N.Y.3d 663, 665, 966 N.Y.S.2d 351, 988 N.E.2d 879 [2013] ). That said, defense counsel may well have decided to forgo a charge that had no connection to the primary defense claim that defendant was not involved with the shooting at all, and any error "was not so egregious or prejudicial as to warrant a finding of ineffective assistance" ( People v. Poirier, 126 A.D.3d 420, 421, 6 N.Y.S.3d 15 [2015], lv denied 26 N.Y.3d 1042, 22 N.Y.S.3d 172, 43 N.E.3d 382 [2015] ; see People v. Blake, 24 N.Y.3d 78, 81–84, 996 N.Y.S.2d 585, 21 N.E.3d 214 [2014] ; People v. Kluss, 143 A.D.3d 1281, 1282 [2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017] ). Defendant alleges no other deficient conduct and, having reviewed "the evidence, the law, and the circumstances of [this] case" in its entirety, we are satisfied that he received "meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, defendant's complaints regarding the jury charge are partially unpreserved and, insofar as they are preserved, are unavailing. Supreme Court charged the jury on the doctrine of transferred intent with regard to the count of intentional murder in the second degree (see Penal Law § 125.25[1] ) and properly declined to name the intended target as part of it (see People v. Wells, 7 N.Y.3d 51, 56–57, 817 N.Y.S.2d 590, 850 N.E.2d 637 [2006] ; People v. Harris, 115 A.D.3d 761, 762, 981 N.Y.S.2d 451 [2014], lv denied 23 N.Y.3d 1062, 994 N.Y.S.2d 322, 18 N.E.3d 1143 [2014] ). Thereafter, in responding to a jury request to repeat the charge, Supreme Court "conveyed the proper legal standards" by clarifying that the intended target could have been the victim as well as another individual ( People v. Simmons, 15 N.Y.3d 728, 729, 905 N.Y.S.2d 797, 931 N.E.2d 1053 [2010] ; see People v. Jeffrey, 164 A.D.3d 604, 605, 82 N.Y.S.3d 88 [2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ; see also CJI2d[NY] Penal Law § 125.25[1] ). Defendant's remaining arguments, to the extent not addressed above, have been examined and lack merit.
Egan Jr., J.P., Lynch and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.